67 Neb. 603 | Neb. | 1903
Lead Opinion
This is an action in ejectment brought in tbe district court for Jefferson county by tbe St. Joseph & Grand Island Railway Company, defendant in error, against Weems H. McLucas and John C. McLucas, plaintiffs in error, to recover possession of a strip of land extending along the track of tbe railroad in the city of Fairbury; being 150 feet wide from tbe centre of tbe track. Tbe land was in possession of plaintiffs in error. Tbe petition alleged that defendant in error was a duly incorporated railway company, operating its line of road through Jefferson county as a common carrier of passengers and freight; that it has a legal estate in and was entitled to the immediate possession of tbe strip of land described in
There has been a very thorough and painstaking investigation of the questions involved, and the authorities bearing thereon, and an able presentation thereof at the bar of this couft, not only by counsel in the case, but by other distinguished counsel, who appear as amici curkc, which has enabled us the more readily to reach a conclusion satisfactory to ourselves.
The trial court found that plaintiffs in error had been in the open, notorious, exclusive possession of the premises in controversy for fifteen years prior to the commencement of the action, and it is not claimed that this finding is not abundantly sustained by the evidence. Relying upon this finding, plaintiffs in error contend that the-judgment should as matter of law have gone in their favor. A number of reasons are urged by defendant in error in support of the correctness of the judgment of the lower court, among which are, first, that in jurisdictions where a right of way may be lost to a railroad company by adverse possession — our own claimed not to be of that number — possession, in order to be adverse, must be of a character inconsistent with the easement of the railroad company. In other words, it is said that in such jurisdictions the possession is not adverse as long as it is compatible Avith the use to subserve Avhich the right of Avay was in the first instance granted. The ground upon which this contention rests is stated at length and somewhat aptly, by the supreme court of Tennessee, in Railroad v.
While there is some conflict, the great weight of authority sustains the doctrine announced above. From among the cases the following may be cited: East T., V. & G. R. Co. v. Telford’s Executors, 89 Tenn., 293, 10 L. R. A., 855; Northern Comus Investment Trust Co. v. Enyard, 24 Wash., 366; Mobile & O. R. Co. v. Donovan, 104 Tenn., 465; Railroad v. French, supra; Union P. R. Co. v. Kindred, 43 Kan., 134; Carolina C. R. Co. v. McCaskill, 94 N. Car., 746; Southern P. R. Co. v. Hyatt, 132 Cal., 240, 54 L. R. A., 522. While the following cases, though some are distinguishable from the case at bar, adhere to the
A second reason urged, and one upon which we place the determination of this case, is that under the constitution of this state a railroad is a public highway, and that as such, title to its right of way can not be taken from it by adverse possession. Section 4, article 11 of the constitution of this state, is in part as follows: “Railways heretofore constructed, or that may hereafter be constructed in this state are hereby declared public highAvays, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law.” The exercise of the right of eminent domain in the condemnation of land for right of way purposes by railroad companies is wholly inconsistent with any other theory than that the railroad is a public high-Avay; and the universal holding of the courts, so far as we are aAvare, is that railroads are highways. Olcott v. Supervisors, 83 U. S., 678, 21 L. Ed., 382; San Francisco, A. & S. R. Co. v. Caldwell, 31 Cal., 367, 371. That the companies operating them may be compelled to transport passengers and freight alike for all persons is well settled. This court has many times so held. That railroads are impressed with a public character, is the more manifestly true under the terms of the constitutional provision quoted. The power of eminent domain is an attribute of sovereignty, and under the provision of the constitution, can only be exercised in the taking of private property for a public use, and then only after just compensation. The power is only coextensive with the necessity of the use. Welton v. Dickson, 38 Nebr., 767, 22 L. R. A., 496, 41 Am. St. Rep., 771. The power to acquire title to the right of \Aray of a railroad company by adverse possession, is wholly inconsistent with the right and interest of the general public in the highAvays of the state. The fact that a railroad is owned and operated by a private corporation, and
The judgment of the lower court is right, and it is, therefore, recommended that the same be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Rehearing
The following opinion on rehearing was filed November 5, 1903. Former judgment of affirmance adhered to:
1. Federal Statute: Interpretation oe the U. S. Supreme Court. The supreme court of the United States is the final expositor of federal statutes, and its decisions construing such statutes and determining their force and effect are conclusively binding upon the state courts.
2.-: -: Railroad Right oe Wat. According to the decision of the supreme court of the United States in the case of Northern P. R. Co. v. Townsend, 190 U. S., 267, 23 Sup. Ct. Rep., 671, a congressional grant of a right of way for the construction of a railroad is upon an implied condition, which is inconsistent with the acquisition in any manner of any part of such right of way by a private individual or corporation.
3. Railroad Right of Way: Grant erom: Government: Statute oe Limitations. The right of way of the Grand Island Railway Company, having been acquired by grant from the general government for the construction of a railroad, the statute of limitations is not a defense to an action brought by said company to recover possession of a strip of land within such right of way.
This was an action of ejectment, brought by the railroad company to recover possession of a strip of land situated within its right of way in the city of Fairbury. Defendants asserted title by adverse possession, and, according to the findings of fact, proved exclusive occupancy under claim of right for fifteen years. The trial court, however, held that the statute of limitations had no application to the case and accordingly gave judgment in favor of the plaintiff. This judgment was brought here for review and affirmed for the reasons stated in the opinion of Commissioner Kirkpatrick {ante, p. 607). Our faith in the validity of these reasons was somewhat shaken
With this decision before us, and with an imperative obligation resting upon us to accept it as binding authority, it v ould be manifestly unprofitable to inquire whether a different conclusion might not be reached if the right of way had been acquired otherwise than by grant from the general government. Other cases are pending in this court which will, we are advised, bring before us in a short time the broad question of the applicability of the limitation law to actions brought by railroad companies
The judgment of affirmance is adhered to.
Former judgment adhered to.
14 Statute* at Large, p. 210, ch. 218.