71 Vt. 84 | Vt. | 1899
Four objections are made to the action of the county court.
(1) It is claimed that ejectment will not lie to recover an easement, as held in Judd v. Leonard, 1 D. Chip. 204.
This is no doubt true in regard to an easement pure and simple, like the right to cross another’s land, to draw water from one’s spring, etc. In such case, the one entitled to exercise the right has no title to the land, nor spring, and no right to exclusive possession of it. He can exercise his easement only, and for any obstruction therein he cannot maintain ejectment. The right of the plaintiff to the land in question is an easement; the only purpose for which it had a right to take it, was for a right of way. Quimby v. Vt. C. R. R. Co., 23 Vt. 387. That such an interest cannot be taken on execution against the company is stated by Redfield, C. J., in Hill v. Western Vt. R. R. Co., 32 Vt. 68. We also recognize the rule that a judgment in ejectment
It was provided in the charter of the railroad company that constructed the Rutland road that when it took land by right of eminent domain the land should be appraised by commissioners and when the damages were paid “then said corporation shall be deemed to be seized and possessed of such lands so appraised by said commissioners.” Acts 1843, No. 54, § 7. The corporation under the circumstances stated in the findings of fact became invested with the same title that would have accrued to them had the damages been paid. It became invested with the title of the land subject to the equitable lien of the owner for his damages. The plaintiff, therefore, is “seized and possessed” of the land, i. e., “seized and possessed of such an estate in the land as is necessary for its uses, a right of way,” as in Quimby v. Vt. C. R. R. Co., 23 Vt. 387.
Although the right of the plaintiff. company is but an easement and not a fee, it is not precluded from having the sole and exclusive possession of the land, while in the exercise of that easement. The railroad company must from the very nature of its attitude, in order to give security to its passengers and workmen and the enjoyment of the road, have at all times the right to the exclusive occupancy of the lands taken, and to exclude all concurrent occupancy by the former owner for any purpose. Jackson v. R. & B. R. R. Co., 25 Vt. 150; Conn. & Pass. R. R. Co. v. Holton, 32 Vt. 43; Troy & B. R. R. Co. v. Potter, 42 Vt. 265. The judgment in an action of ejectment is, that the plaintiff recover the seizin and possession of the premises. Such was the judgment rendered below. Ejectment is a proper remedy in the case before us. In no other manner
(2) The defendants contend that if the action of ejectment can be maintained, the plaintiff is not entitled to recover for the Pierpoint tract. The plaintiff company or its predecessor surveyed and located their road including within its location the land in question. Pierpoint derived title from a deed given him by Ambrose L. Brown, who owned one-half of the premises in his own right, with a life estate in the other half. The remainder in the latter half belonged to the heirs of his body, and they by quitclaim deed have conveyed to the defendants’ predecessors, provided the deeds conveyed the land in question.
One of the deeds, Defendants’ Ex. 2, did convey such rights as the grantors then had in the lands in question.
Ambrose L. Brown conveyed the land in controversy to Robert Pierpoint, from whom it was taken by condemnation proceedings and Pierpoint was paid his appraised damages as the sole owner of the premises. The children of Brown owned the estate in reversion, and when the land was condemned three were of full age and the others became so within ten years thereafter. All lived in the village of Rutland and knew of the location and construction of the road.
Ambrose L. Brown, the natural guardian of the minor children, made the preliminary survey of the railroad and was the company’s resident engineer when it was constructed. The life estate of Ambrose terminated 22 September, 1865, and the reversioners were then, if not before, entitled to claim their damages. The damages to the reversionary interests were subject to appraisal at the time the road was located and constructed, under Acts 1846, No. 22, § 3, for there was a life estate to be appraised as well as the reversionary interests. From the time of the condemnation proceedings in 1848 until 1873, a period of more than twenty-five years, and sixteen years after all
In the latter year they quitclaimed their interests to the defendants’ predecessors in title, and the latter went into possession, but could gain no rights by adverse use. V. S. 3745. This case is governed by former decisions of this court, in which it has been held that the land-owner cannot maintain ejectment nor trespass when he has consented to the entry upon his land and the construction of the road, or knew of it and made no objection and permitted the road to be used for years without making claim for compensation. McAuley v. R. R. Co., 33 Vt. 311; Knapp v. McAuley, 39 Vt. 275; Kittell v. R. R. Co., 56 Vt. 96. The same rule has been applied when consent and knowledge did not appear, and even when the land-owner forbade the entry. Kendall v. M. & C. R. R. Co., 55 Vt. 438; Adams v. R. R. Co’s, 57 Vt. 240; Bridgman v. R. R. Co., 58 Vt. 198; Robinson v. R. R. Co., 59 Vt. 426. A case “on all fours” with this is Austin v. R. & B. R. R. Co., 45 Vt. 215. It differs from this case in one respect only. In the Austin case, the moiety and life estate in the other moiety were conveyed to the road by deed. In this case, such interests were taken, by condemnation. It was held that the reversioners could not maintain ejectment to be let into joint possession. It logically follows that if they cannot maintain ejectment, the railroad company, which is entitled to exclusive possession, can maintain the action to eject them. What remedy, if any, the reversioners or their grantees have to recover their damages is a question not before us.
(3) The third point is that the description of the land taken from Robert Pierpoint under condemnation proceedings is void for uncertainty. The starting point is in “the west line of James Barrett Jr.’s land.” Rather indefinite to be sure, but, "certum est quod certum reddi protest.” At the time of condemnation, the railroad had surveyed and located the road and were then in occupancy
(4) The last point is, that “the facts clearly show an abandonment by the plaintiff of the right of way of the Delaware & Hudson tracks if it ever had any.” This is not the correct view to take of the facts. The road was surveyed and located and the company entered into possession. The award states that the company had “entered upon and occupied the lands,” and were evidently then occupying them.
The judgment of the county court is affirmed.
After the judgment was affirmed, the defendants were permitted to file in the supreme court a declaration for betterments. For authority to so file a declaration in this court, see Beckley v. Willard, 13 Vt. 533, in which cause it was done, and the case remanded for a trial upon the general issue on the questions relating to betterments. While a declaration for betterments must be filed in the county court in case a judgment becomes final in that court, the better practice, in case the ejectment cause passes to the supreme court, is to await the disposition of it in that court, before filing a declaration, for not until that time can it be known that one is necessary, or that the question of betterments is material.