26 S.D. 491 | S.D. | 1910
This action was brought for the purpose of quieting title to certain lots situate in the city of Aberdeen, S'. D. Trial was had before the court without a jury, and the court made and entered findings of fact and conclusions of law therein in favor of the plaintiff and judgment entered thereon. A motion for new trial having been denied, the defendant the Minneapolis, St. Paul & Sault S-te. Marie Railway Company appealed to thi-s court from the judgment and from the order denying a new trial..
Plaintiff -claims fee title through a direct chain of transfers from one Joseph P. Cadieux, while the appellant, in its answer, claimed fee title to- said premises under and by virtue of certain condemnation proceedings 'had in the district court of Brown county, in the then territory of Dakota, in the year 1887, in which condemnation proceedings said Joseph P. Cadieux was named as the defendant -owning said lots. There is no dispute but that subject to such condemnation proceedings the title to the premises in question has passed to the respondent, but it was the contention of the respondent upon the trial, and is now: First, that said condemnation proceedings were irregular and void; second, that if the condemnation proceedings were valid, and if it should be held that by such 'proceedings appellant acquired merely an easement in said premises, to-wit, a right of way over same, such easement has long since been abandoned and forfeited; third, that, if said condemnation proceedings were valid and appellant -acquired through such proceedings a fee title to the premises in question, then respondent and his grantors have acquired title to said premises by payment of taxes more than 10 years while -holding said lots under -color of title as evidenced by deed of record.
It becomes unnecessary for us to determine the validing of the condemnation proceedings. This court has held in the case of Sherman v. Sherman, 23 S. D. 486, 122 N. W. 439, that condemnation proceedings, under the law as in force at the time of the condemnation proceedings pleaded in this case, passed a fee title to the railroad company. It is therefore unnecessary for us to determine whether or not, under the facts proven in this case, a mere easement would have been lost by abandonment and forfeiture. While the decision in Sherman v. Sherman was made in a cause, where, perhaps, a determination of the question above mentioned was not necessary, yet we feel confident of the correctness of the views of this court expressed therein, and do not desire to depart therefrom. The trial court held that none of the real estate herein had ever in any way been used or occupied in the operation and maintenance of any railroad. That being true, then, under the decision of -this court in St. Paul, M. & M. R. R.
The judgment of the trial court an-d order denying a new trial are affirmed.