177 Iowa 690 | Iowa | 1916
The issues were substantially these:
In his petition, plaintiff alleges he is the owner in fee simple of the southwest quarter and the north half of the southeast quarter of Section 11, Township 79 north, Range 21 west- of the 5th P. M.; that defendants constructed and are maintaining and operating a railroad line over said premises, solely for the transportation of defendants’ coal, without plaintiff’s consent and without payment or compensation for damages; that the proceedings ended with the filing by commissioners of an award of' damages, as above described; and that defendants have wholly failed and neglected to pay said award or any other sum. The answer and cross-petition of defendants admit that each defendant is a corporation. By way of cross-petition, the defendants allege that the Jasper County Coal Company constructed, owned, maintained, and, as owner, was in the undisputed possession of, and operated the sole and only railway on and across the' property in question for many years previous to February 4, 1902, and,
Defendants pray that the defendant Colfax Consolidated Coal Company be adjudged and decreed to be the absolute owner of the said railroad line on and across the land, and that plaintiff be barred of any right, title or interest in, or with respect to, said line of railroad and every part thereof, and for general equitable relief.
For reply and answer to cross-petition, plaintiff says:
1. That he denies each and every allegation therein contained, not hereinafter specifically admitted.
2. That the plaintiff acquired title to said land by and through the will of his grandfather,. E. N. Gates, long since deceased, and the codicils thereto, which were duly admitted
3. That said railroad was built about the year 1897, from Colfax to a coal mine or shaft about a half a mile south of said land; that at said time said John G. Wirth was in exclusive possession of said land, and that, since the plaintiff has become entitled to possession thereof, said railroad has-been maintained and operated by the defendants in violation of plaintiff’s rights and against his will.
4. That the Colfax Northern Railway Company, defendant herein, was incorporated in June, 1912, and has operated said railroad since that time only.
5. That the sole purpose of the original construction and subsequent operation of said railroad was to assist in the mining and marketing of coal, and it has been used exclusively for said purposes; that it was not originally of a permanent character nor likely to continue for any certain length of time; and that the plaintiff had had no knowledge or notice of the occupancy of said land by said railroad until about the year 1910, nor any knowledge or notice at any time prior to the death of said Alvin C. Gates that the defendants or their predecessors, or their alleged grantors or assignors, c]aimed any right in or upon said land by adverse possession;
By an amendment to their answer, defendants alleged that plaintiff entered into a written contract with one Joseph S. Dodd and executed a deed to him to the land in question, and that, after the date thereof, Dodd alone has any right to the damages' claimed by plaintiff. Dodd filed a petition of intervention, consenting that the damages be paid to plaintiff, and stating that he never claimed any interest in the right of action against defendants with reference to the right of way of said corporations over the land in question. The contract referred to is dated September 17, 1913, and by it plaintiff agreed to sell the land to Dodd, and the deed executed pursuant thereto was executed February 28, 1914. In this deed, plaintiff, the grantor, reserves a right of action against defendants with reference to said right of way. As stated, the trial court found for plaintiff, and defendants seem to mahe no contention, at this time, in regard to the Dodd contract and deed. There was an agreed statement of facts, which, condensed, is substantially as follows:
1. E. N. Gates died in 1883. He was then the owner and in possession of the lands above described by government' subdivisions.
2. By his will, E. N. Gates devised a life estate in said lands to his son, Alvin C. Gates. Plaintiff, the son of Alvin C. Gates, was, by said will, devised the said lands subject to said life estate.
3. Plaintiff was born December 23, 1890.
4. Alvin C. Gates died August 15, 1913.
5. Plaintiff, on December ll, 1913, requested compensation for defendants’ occupation of a railroad right of way across said lands. This was his first assertion of rights in said lands adverse to defendants, and was followed up by
6. The railroad line of which plaintiff complains was built by the Jasper County Coal Company, a corporation, in 1897, and was operated by said Jasper County Coal Company as its property. Possession of the railroad line was unquestioned until after the Jasper County Coal Company made its deed to the Colfax Consolidated Coal Company, hereinafter referred to.
7. On February 4, 1902, the Jasper County Coal Company executed a deed to Colfax Consolidated Coal Company, which deed, on April 10, 1902, was filed for record in the office of the recorder of deeds of Jasper County, Iowa, and is recorded in the records of said office. The consideration recited in this deed was. the payment of $15,000 and other, good and valuable consideration. The description of the railroad line by said deed conveyed, which crosses the above lands, is as follows:
“The railway of the Jasper County Coal Company as now laid from the Chicago, Rock Island and Pacific Railway in the town of Colfax, Jasper County, Iowa, and extending therefrom in a southerly and then easterly direction to the east line of of Section 13, Township 79, Range 21 W. 5th P. M., Iowa, together with all the right of way and roadbed of said road; all turnouts, sidetracks, switches and stubtrack or tracks of whatever kind, nature or description, including all tracks, ties, iron, steel rails upon said roadbed, turnouts, switches, including the tracks to the mines of said Jasper County Coal Company. The intention of this deed is to convey to the Colfax Consolidated Coal Company all the railroad property of the grantor herein, of whatever kind or description, lying or being in Washington and Mound Prairie Townships, Jasper County, Iowa, whether expressly named and described herein or not, and if, by any mistake or omis
Said deed was duly acknowledged.
8. Immediately after the execution of said deed from Jasper County Coal Company, the Colfax Consolidated Coal Company went into possession of said line of railroad, there being no interim between the possession of said Colfax Consolidated Coal Company and its grantor; and said Colfax Consolidated Coal Company, since taking possession, as aforesaid, without question or interruption, continued such possession until December 11, 1913, and the possession and operation of said line has been continuous by itself or its lessees, one of whom is its eodefendant herein, until this present time. All taxes on said railroad line have been paid from February
9. Said railroad was constructed across said land and is being maintained and operated across said land by the defendants, without consent of the plaintiff (or objection of the plaintiff prior to about December 11, 1913), and without any compensation or damages’ having been paid to plaintiff therefor (or demanded by plaintiff prior to about December 11, 1913).
10. One John G. Worth (or Wirth) acquired the interest of plaintiff’s father (the life tenant) in and to said land on or about the 19th day of November, 1888, and owned said interest. He possessed said land (except the portion covered by said railroad line after the construction of said railroad) until the death of plaintiff’s father, which took place about August 15, 1913, and plaintiff and his grantee have been in possession of said land since about August 15, 1913, except the portion thereof occupied by the defendants herein by reason of their railroad line, as herein otherwise described.
11. At the time said railroad was built, in the year 1897, it extended from Colfax southward only to a coal mine or shaft about half a mile south of said land (said shaft being about one mile from said town of Colfax). Up to said time, John G. Wirth was in the sole possession of plaintiff’s father’s interest in said land. The main purpose of the original construction and subsequent operation of said railroad and the extensions thereof was to assist in the mining and marketing of coal, and it has been used for said purposes. The aforesaid coal shaft was known as “No. 5.” Mining operations were continued at said place for about four years only, when the deposit of coal became exhausted. At about the time of the cessation of mining operations at said shaft, another deposit of coal was discovered about three fourths of a mile east
In the summer of 1912, there was opened by the Colfax Consolidated Coal Company a shaft or coal mine known as “No. 9,” located about a mile from “No. 8“ in a southwesterly direction. To reach said “No. 9” shaft, a line of railroad about a half mile in length was built by the Colfax Consolidated Coal Company from its point of intersection with the railroad line which had been previously built, and
12. Plaintiff had no knowledge or notice of the occupancy of said land by said railroad through it, except such constructive notice as the facts herein stipulated impart, until about the year 1910, nor any other knowledge or notice, at any time prior to the death of said Alvin C. Gates, that the defendants or their alleged predecessors or their alleged grantors or assignors claimed any right in or upon said land by adverse possession.
13. The Colfax Northern Railroad Company was organized as a corporation and filed its articles of incorporation April 6, 1901, and, under lease from the Colfax Consolidated Coal Company, operated the line of railroad through the land described in the, will of E. N. Gates from the first day of September, 1904, until in June, 1912, from which time it has been operated by the Colfax Northern Railway Company, one of the defendants herein.
14. Joseph S. Dodd did not come into possession of any of said land until March 1, 1914, at which time he took possession under his deed and still retains the same.
15. During the entire time, there has been a railroad line through the southwest quarter and north half of the southeast quarter of Section 11, Township 79, Range 21, in Jasper County, Iowa. The corporations which have operated the same have, as a continuation of said line, operated a railroad line to Valeria, a station of the Chicago, Great Western Railroad about five miles northwest from Colfax, and at Colfax have maintained a station, yards, and a roundhouse, through which yards trains have been operated from Valeria to the southern termini above described, during said entire time, as one system, and said line has, during all said time, been connected with, and has interchanged freight traffic
16. No person now has or claims any right, title or interest whatever in said real estate (S. W4/4 and N.V2 S. -E.14 Sec. 11, Twp. 79 north, Rg. 21 west of 5th P. M.), except the parties hereto, and said Dodd, under his deed from plaintiff.
It was further stipulated that either party might introduce evidence upon the trial which did not contradict the facts agreed upon as established. In addition to the foregoing facts shown by the stipulation, plaintiff offered in evidence the following matters:
Exhibit A, being a stipulation of facts, is offered in evidence by both parties, with the understanding on the part of the plaintiff that the consideration of the use of the right of way in question, under Section 3004 of the Code, is not evidence of a claim of right to an easement and not evidence of a foundation of adverse possession.
Plaintiff also objects to that part of the stipulation which shows that the Colfax Northern Railway Company is merely lessee of the Colfax Consolidated Coal Company, as immaterial.
Exhibit B is offered in evidence by the plaintiff, — same being a letter from the general manager of the Colfax Consolidated Coal .Company, — with this explanation, that the letter is an answer to a letter which plaintiff’s counsel wrote to the general manager with reference to the subject-matter of this action, and also to a conversation had between them in which they talked about the subject-matter of this suit, and refers to the payment on May 11, 1898, by one of the claimed predecessors of the Colfax Consolidated Coal Company, of an amount of money to J. G. Worth, referred to in the stipulation as owner of the life estate of A. C. Gates, under a certain deed, as therein shown.
.This explanation of plaintiff’s counsel is to be received as evidence in connection with the letter.
“Colfax Consolidated Co.
“Colfax, Iowa. Jan. 9, 1914.
“Mr. Tim J. Campbell, Atty., Newton, Iowa.
“Dear Sir: Your favor of Jan. 6, 1914, at hand. We find that the right of way you refer to was paid for May 11th, 1898.
“Yours very truly,
“J. B. Ryan, General Manager.”
As we understand the record, it is not claimed by defendants that plaintiff has ever been paid anything for the right of way across the land in question.
‘1 The land so taken, otherwise than by the consent of the owners, shall not exceed one hundred feet in width, except for wood and water stations, unless where greater width is necessary for excavation,” etc.
Section 1999, Code, 1897, requires freeholders to “inspect said real estate, and assess the damages which said owner will sustain by the appropriation of his land for the use of said corporation.”
They say that the assessment which plaintiff procured to be made under said section was of damage to his real estate by -the appropriation thereof, which was originally in 1897, when the road was built; that plaintiff, having availed himself of these provisions, is in no position to assert that he caused damages to be assessed because of the existence of a mere easement. Appellee argues that ihis issue was not raised in the pleadings, but contends that, even if it had been, under the authorities, only an easement could have been acquired under the facts proven. In Hibbs v. Railway, supra, it was said that, had the party pursued a legal course to condemn the land, defendant would not have acquired any title, but an easement. In Brown v. Young, 69 Iowa 625, it was held that a right of way for a railway company is only an easement, though it be conveyed by deed; and the existence of such easement is not a breach of the covenant as to title in a warranty deed subsequently made, conveying the land. See also Smith v. Hall, 103 Iowa 95; Chicago, R. I. & P. R. Co. v. City of Ottumwa, 112 Iowa 300; Capps v. Texas & P. R. Co. (Texas), 50 S. W. 643. 33 Cyc. 167, states this to be the rule where the land is acquired without condemnation proceedings and without any contract with the owner, as where it is acquired by adverse possession. See also 14 Cyc. 1207, 1208. And we find this rule in 2 C. J. 167, Section 317, that
this, the statute has been applied to easements, whether affirmative or defensive. Churchill v. Burlington Water Co., 94 Iowa 89, 93, 94. In that case, it was said also that the right to discharge soot and smoke upon the premises of another is an easement, and within the contemplation of the statute.
“In all actions hereafter brought, in which title to any easement in real estate shall be claimed by virtue of adverse possession thereof for the period of ten years, the use of the same shall not be admitted as evidence that the party claimed the easement as his right, but the fact of adverse possession shall be established by evidence distinct from and independent of its use, and .that the party against whom the claim is made had express notice thereof; and these provisions shall apply to public as well as private claims.”
“For, as we think, the meaning of the statute is, that the ‘use (of the premises) shall not be admitted as evidence that the party claimed the easement as his right, but the fact of adverse possession (that is, that the possession was adverse) shall be proved by evidence distinct from and independent of the use, and by evidence, that the party against whom the claim is made had express notice thereof’ (that is, of the use and claim). In other words, a highway cannot be established by user alone, although the owner may have had knowledge of the use but did not have ‘ express notice, ’ a claim was made based thereon independent of, or additional to, the mere use. Therefore.it does not matter whether the instruction is based on prescription or dedication, or both, it is erroneous. We have no occasion to determine whether the statute applies to a case where a highway has been used by the public for ten years prior to the first day of- September, 1873, when the statute took effect, because no such question was submitted to the jury.”
We find nothing in the evidence or agreed statement of facts that plaintiff had any express notice of any claim made by defendants, further than the mere occupancy and use of the strip by its railroad. The stipulation on this point is this:
“14. That the plaintiff had no knowledge or notice' of the occupancy of said land by said railroad through it, except such constructive notice as the facts herein stipulated, until about the year 1910, nor any knowledge or notice at any time prior to the death of said Alvin C. Gates, Aug. 15, 1913, that the defendants or their alleged predecessors or their alleged grantors or assignors claimed any right in or upon said land by adverse.possession.”
Soon after the plaintiff became entitled to the possession of the land, which was at the death of his father, in August, 1913, he took up with defendants the question of their con-
“It is claimed by appellants’ counsel that, as plaintiff knowingly permitted one of the defendants to enter the land and make improvements, he is estopped from setting up any title thereto. If it is meant that plaintiff cannot set up any claim to the improvements the railroad constructed on the land, he does not do so in the petition. It cannot be claimed that the defendant has acquired any title to the land; all that it could have acquired, had it pursued a legal course to condemn the land, would have been an easement. Certainly it- can acquire no more without taking legal steps, and without a contract with plaintiff, which we have seen it has failed to establish. We have never heard that a trespasser entering land may, by any improvement, acquire right to deprive the owner of his property. Had defendant entered upon the land, claiming a right to do so, which was known to plaintiff, and under that claim constructed.the road, counsel’s position would have some foundation in law to support it. But nothing of the kind is shown. It had no permission by a contract with plaintiff to do so, and did not- pursue the course authorized by law in order to acquire such right. It acquired, therefore, no right to hold the land without rendering to the' plaintiff just compensation. Its right to the easement, upon making just compensation, determined in a manner provided by the law, as we shall hereafter see, is not denied by plaintiff.”
In Gray v. Haas, 98 Iowa 502, 504, 505, we said:
“To establish a highway by prescription, under this statute, the fact of adverse possession must be established by evidence distinct from and independent of the use, and by evidence that the party against whom the claim of adverse user and possession is made had express notice of such user and claim of possession. It follows that it is not enough,
Section 3004, we think, applies to all claims of an easement by adverse possession, whether under claim of right or color of title. Under- this statute, the fact of adverse possession must be shown by evidence distinct from and independent of the use, and it must be shown that the person against whom the claim 'is made had express notice of the use and claim. We think appellants have failed in these respects to sustain their defense of adverse possession.
Appellee differentiates Elcan v. Childress (Tex.), 89 S. W. 84, and other cases cited by appellants, by this language:
“But here the possessor was a grantee of the life tenant, and the principles announced in the above authorities must therefore govern.”
Appellee makes this claim upon the record before set out in regard to Exhibit “ B, ” and the explanation of plaintiff’s counsel, which was by agreement received as evidence in connection with the letter. Appellants, in reply, say that this is evidence offered by plaintiff himself, but it occurs to us that this can make no difference, because it was in evidence and seems not to be.disputed by any other evidence or the agreed statement of facts. Appellants further say that the letter is only hearsay, but it went in without objection. If the right of way of the defendants was paid for May 11, 1898, that would be at a time when Worth was the owner of the life estate, as shown by Paragraph 10 of the agreed statement of facts, heretofore set out. And under the explanation of plaintiff’s counsel, which was to be treated as evidence, it would seem that the payment' of money alleged by defendants to have been made May 11, 1898, for the right of way, was made to Worth. Counsel for appellants have gone into a somewhat extended analysis of the statement of plaintiff’s counsel in reference to Exhibit “B. ”
In view of the length of the opinion, we feel that we would not be justified in discussing it further, except to say
“But where, as here shown, the possessor is a stranger to the title of both the life tenant and the remainderman, the possession-is adverse to both, and each has, as before stated, right of action for recovery as soon.as the adverse possession begins; and permitting this possession to continue for the statutory period will bar the right of both the life tenant and the remainderman. From these conclusions it necessarily follows that the right of all of the appellants had been lost prior to the institution of this suit.”
To the same point they cite McConnico v. Thompson (Tex.), 47 S. W. 537, and Muller v. Manhattan Railway, 53 Misc. Rep. 133 (102 N. Y. S. 454). Counsel for appellee distinguish the Eicon ease from the case at bar, because they say that in that case the possessor is a stranger to the title of both the life tenant and the remainderman, and they say that in such ease it might be held that the statute of limitations would commence to run when possession was taken, provided that, in. addition, the remainderman had express notice, as provided in Section 3004 of the Iowa statute, and, as before stated, they contend that, under the record, the possessor, defendant coal company, was a grantee of the life tenant, and
“The case is not one.where the life estate extended to the whole. ... In such cases the remaindermen have no right to possession until the termination of the life estate, and hence, as to them, limitation will not run until then.”
We shall attempt to state appellee’s position at this point as briefly as possible, and cite his cases. Their contention is, substantially, that, appellants and their grantors having gone into possession of the land in controversy for right of way purposes under an arrangement with Worth, the life tenant, the life tenant had a right to allow the appellants to occupy the land so long as his term lasted, provided no injury was done to the remainder, and that, therefore, the occupancy was, in its inception, rightful; that, this being true, it would continue in the same character and not become hostile until the right terminated, citing 2 C. J. 124, Sec. 210, where it was said:
“Having begun in consistency with the rightful title it must clearly appear that its character has been changed. Otherwise the possession will retain its original quality through any succession of occupants of the land and will be presumed to be in subservience to the rightful interest. It follows therefore that where the possession of the claimant was in its 'inception taken with the permission of the owner and in subordination to his title, it cannot become adverse without a distinct and open disavowal of the title of the owner, brought home to the owner.”
They cite also 14 Cyc. 1148, to the proposition that, if an easement is enjoyed under a deed, there can be no adverse enjoyment until the expiration of the right under the deed. They cite also 1 Cyc. 1058, to the proposition that:
See also 2 C. J. 124, ■ Sections 208, 209.
When appellants continued their possession beyond the period of the life tenancy, they then infringed upon the right of the plaintiff. After they had given express notice of their claim to appellee, December 11, 1913, they became adverse .claimants as to him. Appellee commenced legal proceedings in a few weeks thereafter. In Jerald v. Elly, 51 Iowa 321, 323, we said:
“The fifth instruction is clearly correct. It, in effect, holds that the use of and exercise of ownership over the right of way is not sufficient to establish a right or raise a presumption of a right thereto. The possession of lands is not evidence of title. In this instance the possession of the railroad company may have been a mere license to terminate at the will of the owner, or it may have been acquired and held by trespass. The use of the land and exercise of ownership over it were, therefore, not sufficient to raise a presumption of - title.”
They cite also Hope v. Norfolk & W. R. Co., 79 Va. 283, 289, where it was said:
“It only remains to say that the plea of the statute of limitations cannot be sustained. The life tenant died in 1881. It was not until then that the plaintiff’s right of possession accrued, and the suit was brought within three years thereafter. ’ ’
See also Jackson v. Johnson, 5 Cowen (N. Y.) 74 (15 Am. Dec. 443); Daniels v. Chicago & N. W. R. Co., 35 Iowa 129; McClinton v. Pittsburg, F. W. & C. R. Co., 66 Penn. St. 404; Pierce on Railroads, 167; Hope v. Norfolk & W. R. Co., 79 Va. 283-289.
4. Some other questions are argued) but we think those
“There is no provision in this statute prohibiting the corporation from entering upon the land prior to the assessment, or requiring the assessment to be had before the land is occupied. The rights of the parties in case the land should be occupied before the assessment are not prescribed by the statute. But this court has held that the railroad company acquires no right to the land until payment of damages. Henry v. D. & P. R. Co., 10 Iowa 540. . . . The possession of the company before assessment of .damages is that of a trespasser.”
And in Hartley v. Keokuk & N. W. R. Co., 85 Iowa 455, 459, we said:
“The road was constructed by the defendant over the land in question in the year 1880. It is claimed that, as this proceeding was not commenced within five years from that time, it is barred by Section 2529 of the Code. . . . The proceeding is . . . special, and not an action within the meaning of the provisions of the Code quoted, and the statute of limitations applies only to actions. It is true the provisions of the Code concerning the prosecution of civil actions are to be followed in special proceedings not otherwise regulated, so far as applicable. Code Section 2520. But the provisions contemplated are those which relate to the settling of the issues, the place and manner of trial, and other matters of that character. . . .In Cuthbertson v. Locke, 70 Iowa 49, it was said that no defense under the statute of limitations can be interposed in proceedings to establish the boundaries and corners of land. We are of the opinion that the same rule must be applied to proceedings to ascertain the compensation due to a landowner for a right of way taken by a railroad company. The section of the statute specified does not refer to provisions of. the law designed to prevent the prosecution of actions because of delay in commencing them.”
We think the instant case is ruled by these eases. It may
Our conclusion is that the decree of the trial court was right, and it is, therefore, — Affirmed.