51 Minn. 15 | Minn. | 1892
The plaintiff alleges that he is, and for more than three years has been, the owner of a tract of land in Blue Earth county, containing upwards of 1,300 acres, which is traversed by the defendant’s railway. The railroad was constructed upon and
1. The evidence sustained the allegations of plaintiff’s title and ownership, and there was no evidence in the case tending to show that defendant’s occupancy of the premises was lawful, except that the same was by the license, express or implied, of the grantors of the plaintiff.
If the original entry or subsequent occupancy of the premises, to the time of plaintiff’s purchase, was by the license' of the grantors of the plaintiff, such license is a protection for any acts done under it; and in any event the plaintiff would have no right of action for use and occupation or trespasses committed by defendant in the con
But such license, if any there was, was subject to be revoked at any time by the licensor; and thereafter the defendant would become a trespasser, and the landowner would be' entitled to his remedy either in trespass or ejectment, as he might be advised. The sale and conveyance of the land to the plaintiff was by itself a revocation of any previous license, and the plaintiff had a right immediately thereafter to bring his action to recover the possession. Eggleston v. New York & Harlem R. Co., 35 Barb. 162; Miller v. Auburn & Syracuse R. Co., 6 Hill, 61; 2 Amer. Lead. Cas. (5th Ed.) 576; Johnson v. Skillman, 29 Minn. 95, (12 N. W. Rep. 149.) Plaintiff’s right of action is not impaired by his inaction or delay in seeking his legal remedy. Defendant acquired no rights in the land, or to the possession, by its entry and occupation. On the contrary, it has been a continuous trespasser, except as to acts done under the license. The contention of the defendant that by its entry and possession, and the construction of its road, it lawfully appropriated the land, and that the right to compensation therefor accrued to the plaintiff’s grantor, finds no support in the decisions of this court. The title was never divested. It passed to the plaintiff, and as to him the defendant is simply a trespasser; and it can only acquire the right to use the same by grant or condemnation proceedings, as provided by law. Lamm v. Chicago, St. P., M. & O. Ry. Co., 45 Minn. 73, 77, (47 N. W. Rep. 455;) Galway v. Metropolitan Elev. Ry. Co., 128 N. Y. 132, (28 N. E. Rep. 479.)
The plaintiff was clearly entitled to recover the premises in question unless the defendant availed itself of its privilege under the statute of having its damages assessed in the same action.
2. The court having denied defendant’s application to withdraw the claim set up in its answer for an assessment of damages as for a condemnation of the land, the case was heard and disposed of upon the merits of such application, and a verdict rendered, assessing the damages accordingly.
3. At the trial, before any testimony was introduced, the record shows that “the defendant moved the court for leave to withdraw all that portion of its answer that seeks to obtain a condemnation of the land alleged to be the right of way strip; thereby leaving the issue to be tried as originally made by the complaint, with the denials of the answer.” This application, respondent claims, should be interpreted as an application to the court to amend the answer by striking out and eliminating therefrom the claim for an assessment of damages under the statute. Upon the argument in this court, the defendant’s counsel insists that it was entitled to abandon the condemnation proceedings as a matter of strict legal right. And this is, we think, the correct view of the law. It differs from the case of Witt v. St. Paul & N. P. Ry. Co., 35 Minn. 404, (29 N. W. Rep. 161,) for the reason that in this ease such abandonment leaves plaintiff’s remedy wholly unimpaired in the suit already pending, for the recovery of his property with damages, — just the remedy he asks for, and is entitled to by law, if he is the owner and there is to be no condemnation. It resembles the case of an ordinary counterclaim in an answer, which the defendant may withdraw before or at any time during the trial, upon the proper notice or order of the court, filed or made part of the record. Brown v. Butler, 12 N. Y. Supp. 810. But the majority of the court is of the opinion that the defendant did not, by its application, withdraw or show an intention to assert its legal right to withdraw its statutory claim for an assessment, but that it was an application in form addressed to the discretion of the trial judge, and he would have a right to so consider it and dispose of it; and so considered, there was no abuse of discretion in denying it. But I am inclined to think that it was error, because the defendant had the right to abandon, and the application should be deemed as a motion to have the claim for an assessment expunged from the
This disposes of all-the assignments of error which we deem necessary to consider.
Order affirmed.
(Opinion published 52 N. W. Rep. 977.)