14 Colo. 327 | Colo. | 1890
This was an action of ejectment brought by appellee to recover the possession of a strip of land one hundred feet in width, being part of lots 1, 2, 3 and
The answer first puts in issue the allegations of the complaint. For an affirmative defense it is alleged, in substance, that on September 15, 1880, Peter Magnus, then the owner in fee of the lots mentioned, conveyed them to appellee, upon condition that the land should be used for school purposes, and that when such use should cease the property should revert to him;' that on February 15, 1887, the appellee, not desiring to use the lots longer for school purposes, asked Magnus for other lots, which he on that day conveyed; that, in consideration of such conveyance, appellee agreed to vacate the lots in question, and remove the school-house therefrom, at the close of the term then in session.
It is then alleged that Magnus, relying upon appellee’s agreement to vacate the premises, on March 2, 1887, conveyed the same to David G. Peabody; that thereafter Peabody conveyed the undivided one-half of said lots to William J. McGavock; that on July 1, 1887, and after the close of the school term, Peabody and McGavock, relying upon plaintiff’s good faith and intention to perform the agreement made with Magnus, gave permission to defendant to enter upon and construct its railway over the strip of land described in the complaint, which was done at a cost of over $1,000.
It is then alleged that appellant was not informed that-plaintiff intended to use the lots for school purposes; that appellee had notice while the work was in progress that appellant was in possession of the land under the license given by Peabody and McGavock, a|nd gave appellant no notice that it had or claimed any right or interest in the same; that afterwards, and on October 1, 1887, Peabody and McGavock conveyed the premises in question, with other lands, to appellant.
It is further averred that some time in September,.
No more of the answer need be recited. The affirmative defenses were put in issue by the replication, and upon the issues thus formed a trial was had, which resulted in a judgment for the appellee for possession of the premises.
The evidence tends to show that on September 15, 1880, Peter Magnus conveyed the premises above described, by quitclaim deed in the usual form, to the appellee. The deed contains the following covenant: “It is hereby agreed that the said above-described property is to be used for school purposes, and that, whenever it shall cease to be so used, the said property shall revert to the grantor herein, his heirs and assigns, and this said agree
The premises had been occupied for school purposes prior to the execution and delivery of the deed, and were so occupied after the deed was made, and at the time the action was brought. Some time in the year 1886 some steps appear to have been taken to locate the schoolhouse in some other part of the district. In that year Peter Magnus conveyed a tract of land, called the “ Public Square in Petersburg,” to the school district, for use in lieu of the premises in question. Under what circumstances this conveyance was made does not appear. The premises were never occupied by appellee for any purpose. The minutes of the meetings of appellee, which were introduced in evidence by appellant, show that on May 16, 1887, at an adjourned meeting of the school district, the question whether the school-house should be located in the center of the district, or in the public square of Petersburg, was voted upon. “ The highest number of votes carried it to the center; being ten for, and six against.” At the same meeting a committee was appointed, consisting of Thomas Skerrit, R. M. St. Clair and Adolph Candler, to locate the school-house site as near the center of the district as practicable.
On May 26, 1887, at a meeting of the school district, R. M. St. Clair was elected a director or trustee in place of Thomas Skerrit. The board then consisted of Robert M. St. Clair, Adolph Candler and Thomas Lockhart. March 2, 1887, Magnus conveyed the premises in question, with other lands, to Peabody. After the appointment of the committee to select a school-site, Skerrit, as one of that committee, had some talk with Peabody about another site for the school-house, which resulted in an agreement for the conveyance of other lots, but the precise terms of that agreement nowhere appear. The negotiations between Skerrit and Peabody seem to have taken place some time in June, 1887. No one of
Some time in July or August, but at what time the record does not clearly disclose, the employees of appellant entered upon the premises and began work. Very soon after entry was made, at an informal meeting, the school trustees named determined to take the steps necessary to protect the property. Lockhart went to Denver, and called upon Manning, the light of way agent, to ascertain by what right appellant had taken possession of the property. The interview with Manning l’esulted in nothing except the assertion by him of a claim of right under Peabody, and a promise to meet the school trustees at the school-house, upon a day named, to adjust the matter. Manning failed to keep the engagement, and thereupon a wire fence was built about the premises. When the contractors came to lay the ties and iron, they were notified not to enter upon the land. The notice was disregarded, the fence was torn down, the grading completed, and the ties and iron laid.
Before this suit was brought, another attempt appears to have been made by appellee to adjust the difference and avoid litigation. The trustees visited Manning again.
The first question to be determined is whether the license given by Peabody to appellant to enter upon the land in controversy conferred any right of entry, and whether the deed subsequently made by Peabody and McGavock vested appellant with any interest in the premises whatever.
The legal effect of the deed first made by Magnus to appellee is clearly apparent. It was in form an ordinary quitclaim deed, and divested the grantor of all his right, title and interest in the land. The covenant providing that, when the premises should be no longer used for school purposes, the title should revert to the grantor, was clearly a limitation. The title conveyed, therefore, was a qualified fee. Whenever the event might occur upon which the limitation was based, the estate of appellee would immediately cease. Nevertheless, until the happening of that event, appellee had the same right in, and the same dominion over, the estate that it would have had had there been no limitation whatsoever. “Yet while the estate continues, and until the qualification upon which it is limited is at an end, the grantee has the same rights and privileges over his estate as if it were a fee-simple.” State v. Brown, 27 N. J. Law, 13, 20, and authorities cited; Tied. Real Prop. §§ 41, 281.
As Magnus had conveyed his entire estate, it is clear that nothing remained to him which he could convey to Peabody, unless the limitation was such as to leave him vested with an estate in reversion which could be the subject of grant. Such reversion could not exist, how
It follows, therefore, that Peabody was without authority to grant the license under which entry was made; that his conveyance was without legal force or effect; ■and that appellant took possession of the premises without right.
When appellant entered upon the land, the title in fee, and the exclusive right of possession, was vested in appellee. The right of appellee to maintain ejectment, therefore, was perfect. That right was not lost, unless the conduct of its officers in the premises was such that equity and good conscience would require that the value of the land be sued for instead of the land itself. In other words, the right could not be lost except by estoppel or acquiescence in the taking.
It is undoubtedly true, when a railway company enters upon the land of a citizen, even though such entry be -without right, and constructs thereon its road-bed, that'
Although the interests of the public are always entitled to serious consideration, yet the taking of property for public use, without right, cannot be justified, nor will the owner be restricted to compensation and damages, when he has at all times insisted upon his rights in the premises, and has applied to the courts for protection with reasonable diligence. Lewis, Em. Dom. § 648;.Mills, Em. Dom. (2d ed.) §§ 140,141; Pickert v. Railway Co. 25 N. J. Eq. 316; McAulay v. Railway Co. 33 Vt. 311; Railway Co. v. Allen, 113 Ind. 581; Railroad Co. v. Soltweddle, 36 Amer. & Eng. R. R. Cases, 577.
In this case there is no evidence upon which an estoppel can be predicated, or from which acquiescence can be inferred. In June, 1881, when Peabody assumed au
Eichmond and Eeed, 00., concur.
Por the reasons stated in the foregoing opinion the judgment is affirmed.
Affirmed.
Mr. Justice Elliott not sitting.