73 W. Va. 166 | W. Va. | 1913
Gertrude Dulin and others, heirs at law of E. R. Dulin, deceased, recovered, in an action of ejectment against the Ohio River Railroad Company and the Baltimore & Ohio Railroad Company, a narrow strip of ground on which a side track had been laid, and which was claimed as a part of the right of way, and defendants have brought the ease here on writ of error. Both parties claim, mediately, by separate grants from Samuel Dee; plaintiffs, by deed for the land over which the right of way was granted dated the 7th September, 1882, to Alonzo P. Bailey; and defendants, by deed for a right of way fifty feet wide dated the 3rd April, 1882. Defendants’ deed, although earlier in date than plaintiffs’, was not recorded until the 12th May, 1884, several months after plaintiffs’ deed had been recorded; and the deed to Bailey, although later in time, makes no reservation of the right of way, previously granted to the railroad company. The deed for the right of way was made to the Wheeling, Parkersburg- & Charleston Railroad Company, predecessor of the Ohio River Railroad Company. The line of railroad through the land was surveyed in 1881; and, at the time Bailey took possession in 1882, stakes had been set, indicating the survey which had been made of the center line of the road. In the following year, 1883, the railroad company went upon the ground and constructed a single track road, apparently without objection from Bailey; and it and defendants, its successors, have been operating it ever since. Bailey and his suc
Relying upon the case of Porter v. Aberdeen etc. R. Co., (N. C.) 62 S. E. 741, counsel for defendants insist that, after a railroad company has entered upon land, under a claim of right, and constructed its road, and is operating it, ejectment does not lie. But we do not assent to this broad proposition. That is not the law of this state. Such a rule would be contrary to the land-owner’s constitutional right. It would he taking a man’s land, not only without his consent, hut also without due process; in fact, without any legal process whatever. Because'a railroad company is clothed with the right of eminent domain, gives it no excuse to proceed arbitrarily to take an owner’s land. It might thus acquire a right where it could not acquire it otherwise. It should proceed regularly to condemn. But if a land-owner, knowing that a railroad company is building its road through his land, makes no objection, he will be estopped either to sue in ejectment or enjoin its operation, and will be limited to his action for damages only. In such case the law implies a grant of license. 33 Cyc. 154; 2 Elliott on Railroads, Sec. 949; 23 A. & E. E. L. 701. Moreover, if he has full knowledge of his .own rights, and still raises no objection, he will also be estopped from suing to recover damages. N. & W. R. R. Co. v. Perdue, 40 W. Va. 442. On the other hand, if a railroad company enter upon land without the knowledge, or against the protest, of the owner, he may sue either in trespass or ejectment, or he may enjoin the construction of the road, until compensation is ascertained and paid. 15 Am. & Eng. R. R. Cases, (N. S.) 409; Chicago etc. R. Co. v. Hopkins, 90 Ill. 316; Arrington v.
In the present case, the railroad was built and in operation when plaintiffs acquired the land; and they are not suing to recover what was occupied by the main track, but only so much as was recently taken for a siding; and they protested, at the time, against its being taken.
Dee’s deed to the railroad company bears the earliest date, and, in the absence of evidence to the contrary, deeds are presumed to have been executed on the day of their date. Colquhoun v. Atkinson, 6 Munf. 550; Ferguson v. Bond, 39 W. Va. 561. But plaintiffs’ counsel insist that this presumption is overcome, in this case, by the testimony of Samuel Dee who, on cross-examination being asked if he did not acknowledge the deed for the right of way at the same time he executed it, replied that he did. We hardly think that overcomes the legal presumption. It is highly probable that the witness did not understand the technical meaning of the word executed as applied to deeds. He, no doubt, thought that the acknowledgment itself was an execution of the deed, whereas it was only for the purpose of recordation. He should have been asked when he signed and delivered it. A deed is presumed to have been excuted on the day of its date, notwithstanding it bears acknowledgment at a later date. Hardy v. Norfolk M’f’g. Co., 80 Va. 404; Ferguson v. Bond, 39 W. Va. 561. The deed for the right of way being anterior to Bailey’s deed for the land, it is insisted that defendants, being prior in time, are also prior in right. But section 5, chapter 74, Code (1906), avoiding deeds not recorded, as to subsequent purchasers without notice, materially alters this ancient rule of law. Bailey having purchased the land from Dee and acquired a deed making no exception of the right of way, and having recorded his deed first, would have the better right, provided he had no notice of the railroad’s prior deed. If Bailey had no notice of the prior deed he acquired the land unencumbered with the right of way, and he could pass his superior right to his grantee, plaintiffs’ ancestor. On the other hand, if he was affected with knowledge of the prior deed, his knowledge would affect Dulin’s title, because the railroad company’s deed was recorded before Dulin bought.
But apart from the question of prior rights claimed by deed, plaintiffs insist upon their right to recover on either of two other grounds, (1) that the siding is located outside of the bounds of the right of way, as they are defined in the deed under which defendants claim. This relates to location of boundary lines, and is a question of fact for jury determination. (2) Notorious, hostile and exclusive occupancy of the disputed strip, continuously for more than ten years. The Dulins and Bailey, cultivated the land continuously up to within about three feet of the main track; and in 1893, or earlier, the Dulins enclosed by fence, and used a part of it as a garden, but the fence did not extend the full length of the strip. There .is no proof that plaintiffs obtained permission from the railroad company to enclose, or cultivate, the land; neither is it proven that they gave the railroad company notice that they denied its claim to an easement, other than what the law implies from such visible occupation. This brings us to a consideration of the question, whether the statute of limitations applies in favor of a person occupying, and claiming adversely land acquired by a railroad company for its right of way. The courts of the different states are in direct conflict on this question; and the members of this court are also divided in opinion on it. Judge Miller and myself think that the doctrine of adversary possession does not apply to a railroad company’s right of way, and the other members of the court hold that it does. We are now disposing of the case on rehearing. It was first decided two years ago, and in a very elaborate and carefully prepared opinion by Judge' Brannon, then a member of the court, he took the same view as Judge Millee and myself; to speak more accurately, we concurred in his opinion. Our constitution makes railroads public highways, the public is vitally interested in the
But in the present case, the railroad company did not acquire the fee in the land, but only an easement; and the
.“Where abutting or adjoining land-owners cultivate and occupy a part of the right of way granted by congress as an easement to a railway company, such possession must be regarded as permissive only, and not hostile or adverse, so as to confer title.” Union Pac. R. Co. v. Kindred, 23 Pac. 112.
‘ ‘ Occupation of right of way by the owner of the fee, so long as it is not required for railroad purposes, does not start the statute of adverse possession running against the railroad company.” Mobile & O. R. Co. v. Donovan, 58 S. W. 309.
■ “One who holds possession of lands which are subject to the right of way of a railroad cannot acquire prescriptive title as against such railroad, so long as the purposes for which he uses them are not inconsistent with the right of way. The possession cannot be adverse until the railroad needs the property so possessed for railroad • purposes. ” Railroad v. French, 100 Tenn. 209, 66 Am. St. 752. See also Sapp. v. Railway Co., 51 Md. 115.
“There is not an adverse and hostile possession which will give title against a railroad company 'where a manufacturer
“Occupancy, by an individual, of parts of the right of way of a railroad company obtained by condemnation proceedings, with elevators, granaries, coal sheds, and similar structures, used in carrying on his business, and by the company, •as a common carrier, for convenience in handling his shipments, will not he treated as adverse or under claim of title, unless actual notice of such claim is brought home to the company, or his conduct is such as will, as a matter of law, constitute such notice.” Roberts v. Sioux City etc. R. Co., (Neb.) 102 N. W. 60.
The presumption being that the occupation of the right of way by the owner of the servient estate is merely permissive, it follows that the statute does not begin to run until actual notice is given to the railroad company that he claims by hostile right, and the burden is upon him who asserts such adverse right to prove that the railroad company had notice that he so claimed.
Counsel for defendants complain of the action of the court in giving plaintiffs’ instructions Nos. 3 and 5, and in refusing defendants’, Nos. 2, 3, 6, 8, 9, 10, 15, 16, and 17. The questions involved in the instructions are practically settled by the main questions already decided; and it is not necessary to point out the particular error in each. The case was tried upon the theory, entertained by the trial judge, that the statute of limitations began to run against the railroad company, at least from the time plaintiffs enclosed a portion of the right of way, and certain instructions were given upon that theory; and also upon the theory that such visible occupation by plaintiffs, without more, was notice to the railroad company of their adverse claim of right. But, as we have said, plaintiffs being the owner of the servient estate, occupation by them is not necessarily notice of an intention to claim adversely. Plaintiffs’ instructions Nos. *3 and 5 should both have been refused. There was no evidence to support the theory that defendants had abandoned any portion of the
The judgment is reversed, the verdict set aside, and a new trial awarded.
Reversed and Remanded.