144 N.W. 713 | N.D. | 1913
Lead Opinion
About the year 1881 the St. Paul, Minneapolis, & •Manitoba Bailway was built from St. Paul to Winnipeg, passing through the village of Manvel, in Grand Forks county, Dakota territory, and crossing the Turtle river about a mile north of the village. Between the town and the river a tract of land was owned by one Gould, who deeded a right of way 100 feet in width through the said tract, to the said railway company. At the same time the railway company established a private crossing over the said railway and connected the two portions of the tract of land owned by Gould, severed
Plaintiff brings this action in equity to compel the railway company to reduce the elevation of the tracks at the point of the crossing so as to present the same level and condition as had existed during the twenty years" prior to the change. The complaint, after alleging the incorporation of the defendant and the ownership of the land, alleges that the earlier railway company had granted to the said Gould, plaintiff’s predecessor in interest, a private way appurtenant to their said land •crossing the said strip of land owned by it and over its roadbed and railroad tracks, 15 feet in width and extending from the easterly boundary of plaintiff’s land and the westerly boundary of the public highway; that immediately thereupon the railway company graded approaches, and has ever since maintained said private crossing, and that for more than twenty years the plaintiff and his grantors have enjoyed the actual and beneficial use of said crossing, and that said use has been open, notorious, peaceful, continuous, uninterrupted, and adverse, and was enjoyed with full knowledge and acquiescence of the said defendant; that the said grade did not exceed a height of 2 feet above the average level of the ground, and that the said crossing was safe and convenient for use; that during the summer of 1908 the defendant wrongfully and unlawfully interfered with and obstructed
(1) The first point to be settled in this case is one of interpreting the pleadings. Plaintiff insists that, upon the admission of the answer for the purposes of this trial, it conclusively appears that he has such an interest in the crossing aforesaid that arises to the dignity of easement in the land, which cannot be interfered with by the defendant without bringing condemnation proceedings for that purpose. With this contention we cannot agree. Admitting all of the allegations in the complaint not specifically denied by the answer, it would only appear that the defendant company had built and maintained for the-use of the plaintiff and his predecessors a private crossing over its-tracks and across its railway, and that the same had been so maintained for a period of more than twenty years, under a grant from the older company.
It is plaintiff’s contention that he has acquired some interest in the real estate itself, and this action is not for damages, but to enforce' plaintiff’s rights in the strip of land 15 feet in width which crosses-the defendant’s tracks. Appellant cites §§ 4926-4928, Bev. Codes 1905, in support of his contention. The said sections read as follows: Section 4926: “Title by occupancy.' Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession.” Section 4927: “Prescription. Occupancy for the period prescribed by the Code of Civil Procedure or any law of this state, as sufficient to bar
The complaint and answer taken together do not show that the possession of the railway company to this crossing has been in any manner ousted. The statement in the complaint that the land has been used as a crossing is an admission that the said right of way has during all the said time been in use for the passage of trains. The allegations of the complaint that the said grade was raised are a further admission to the same effect, so it stands admitted in the case, from the pleadings themselves, that during all of the time of the alleged prescription, defendant was using the said crossing the saíne as it was any other portion of its track. This fact at once differentiates the case at bar from all cases wherein the defendant has been completely ousted of its possession during the running of the prescriptive period.
It is true, as contended by the appellant, that the complaint alleges that plaintiff’s possession has been adverse, but this must yield to the other portions of the complaint already mentioned. There is no allegation in the complaint that plaintiff has paid taxes upon the land during such period, and this, with other facts, shows the true interpretation of the pleading.
It requires no citation of authority to show that under the circumstances of this case the railway company lost no iota of its title to the land, and that plaintiff acquired none. Otherwise, the railway would have to entirely abolish all private crossings for fear of losing its land. However, on such occasions as the courts have passed upon the question, it has always been held that the title to the land remains in the railway company unimpaired. In Schrimper v. Chicago, M. & St. P. R. Co. 115 Iowa, 35, 82 N. W. 916, reconsidered in 115 Iowa, 42, 87 N. W. 731, it is said: “The basis of a claim of adverse possession must be color of title or claim of right in hostility to the owner, and if it be based on a statutory duty, it is simply permissive, and lapse
In short, appellant’s whole claim to equity is based upon the claim of ownership of an easement in the defendant’s right of way, which he claims' has not been denied, and is therefore admitted by the defendant. Holding, as we do, that the allegations of the complaint,
Upon all of the evidence, we would probably hesitate to hold that the crossing had been injured in any manner not justified by the exigencies of the case, but in view of the fact that plaintiff has not proven his right to the land in question, excepting the permissive one to use the private crossing supplied by the defendant, it follows that he cannot maintain an action to compel the lowering of the tracks to their former level. The action of the trial court in dismissing the action was correct and is accordingly affirmed.
Rehearing
On Rehearing. (Filed January 3, 1914.)
Appellant has filed a petition for rehearing in which he complains that this court has placed too narrow an interpretation upon his complaint. The wording of the complaint is that the older railroad company “granted a private way over its roadbed and railway tracks.” The answer admits an existence of a “private way.” However, the railway company had no right to grant any easement in the land inconsistent with its own use of the right of way for railroad purposes. This for the reason that the railroad company is itself a public servant and its own interest in the land is largely in the nature of an easement. Having no right to grant the easement as interpreted by plaintiff, it certainly had no right to admit in its pleadings that the grant had been made. The court in its first opinion held that the allegations of the complaint should be construed in connection with this legal principle, and that plaintiff had therefore merely alleged a right to use the said crossing subject to all of the rights of the railway company to use the same for its own purposes. If the complaint is not given this interpretation, it is demurrable. The court adheres to the former holding that plaintiff’s pleadings (as above construed) do not allege an easement superior to the right of the railway company to make necessary alterations in the elevation of its tracks. The evidence shows conclusively that the railway company made only such changes in the grade as the interest of good railroading demanded, and that the crossing was left in as good a condition as the railway company could leave it, and is in good condition as a highway and usable
