114 Neb. 845 | Neb. | 1926
Plaintiff sued to quiet title to certain particularly described tracts of land in the city of Omaha, basing his claim of title on continuous, hostile, adverse possession thereof, under claim of right by him and his predecessors in title for a period of more than ten years antedating the commencement of this action. The defendant answered and set up that it was a railway corporation; that the tracts of land in controversy formed a part of its right of way for railway purposes and had been obtained by condemnation pro
That the tracts of land in controversy were within and constituted a part of. defendant’s right of way, that such right of way was obtained by condemnation proceedings in the exercise of the power of eminent domain, and that defendant, or its predecessors, had constructed a line of railway over such right of way and at all times since has operated thereon a line of railway, running trains daily, are facts either admitted or conclusively established. That plaintiff and his predecessors in title had been in the open, continuous possession of that part of the right of way in disputé and asserting title and right in themselves for a period of more than ten years antedating the commencement of this action is also conclusively established.
If a right of way for the construction of a railway acquired by condemnation proceedings is not subject to be alienated by adverse possession so long as a railroad is operated thereon, the judgment should be affirmed.
The rule is well established by the decisions of the United States supreme court that title by adverse possession cannot be acquired to any part of a railroad right of way that is granted by act of congress over public lands. Northern P. R. Co. v. Townsend, 190 U. S. 267; Union P. R. Co. v. Laramie Stock Yards Co., 231 U. S. 190. This rule has been adopted and followed in this court in the following cases: McLucas v. St. Joseph & G. I. R. Co., 67 Neb. 603, 612; State v. Grimes, 96 Neb. 719; Union P. R. Co. v. Wooster, 104 Neb. 421; Etheredge v. Chicago, B. & Q. R. Co., 105 Neb. 778.
It may be conceded that the rule announced in most state jurisdictions is that title to a part of a railroad right of way, obtained by condemnation proceedings, may be divested by adverse possession. From the reported decisions, however, it is not apparent whether the states so holding, have the same constitutional and statutory provisions as exist in this state. By section 4, art. X of our Constitution, railroads are made public highways, free to all persons for the transportation of persons and property thereon, under such regulation as may be prescribed by law, and section 6, art. X of the Constitution, provides: “The exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking by the legislature of the property and franchises of incorporated companies already organized, or hereafter to be organized, and subjecting them to the public necessity the same as of individuals.” Under the laws of this state a railway company may, by condemnation proceedings, in the exercise of the power of eminent domain, acquire a right of possession and easement over real estate for the purpose of constructing and operating a railway. It may acquire such right only for a public usa It is not within the power
By the constitutional provisions above referred to, railways are made public highways, and this court has held in Lydick v. State, 61 Neb. 309, and in Krueger v. Jenkins, 59 Neb. 641, that title to a part of a county road cannot be acquired by adverse possession. The reason for the holding is that the county had only an easement in the road for a public use; that the county was, in effect, a' part of the state sovereignty, and that the statute of limitations was not applicable in such case.
It is true that a different holding has been made by this court with reference to streets and alleys of cities and vil
After a careful consideration of the first opinion in McLucas v. St Joseph & G. I. R. Co., supra, we are satisfied that the principles therein announced are based upon sound reason, and we adopt and adhere to the rule therein stated, basing our decision largely upon our constitutional provisions. We do not wish to be understood as holding that a railroad right of way, obtained by condemnation proceedings, may not be divested by adverse possession when there has been full abandonment. of the right of way, such as where the railroad company removes its tracks from the right of way and places them in an entirely diiferent location.
The conclusion herein reached renders it unnecessary to consider other questions raised and discussed in the briefs.
The judgment of the district court is right and is
Affirmed.
Note — See Adverse Possession, 2 C. J. p. 217 n, 63; p. 225 n. 50; 2 R. C. L. n. s. 272; 22 R. C. L. 850.