178 Iowa 1187 | Iowa | 1916
I. The plaintiff alleges, and it is admitted, that he owns a tract of land in Jones County, upon and through which runs and is operated a right of way of defendant. It is undisputed that the strip used for the right of way was at one time owned by the Diamond Creamery Company, which had record title thereof, and that it conveyed the same by warranty deed to plaintiff, which deed was recorded on October 2, 1911. ' It is averred that the creamery company, while it still owned the land, gave defendant permission to lay a switch or spur from their line of railway across said strip, for the purpose of reaching the creamery, then owned and occupied by said company and its grantors, the Simpson-Melntyre Company; that defendant has no record title to the premises, and no equitable interest therein; that it has occupied the strip by the license or permission of plaintiff’s grantors, which was given so that defendant might reach the creamery plant then run by the grantors, and which permission allowed defendant to use said land for the purpose of taking cars to the plant of the creamery company, and for no other purpose; that the creamery company and its plant no longer exist, and the creamery company has sold the land occupied by them when they were operating, including the land occupied by said switch or spur. In essence, plaintiff asserts that defendant has no record title to the premises occupied; that it claims a perpetual right to maintain and operate said spur or switch by virtue of having had occupancy for more than 20 years; that in truth it had nothing but a permissive license to use the land for a switch and switching purposes, and had made no other use thereof; that plaintiff and his grantors have been in adverse possession for more than 20 years; and that defendant refuses to condemn the land for railway purposes or to purchase from plaintiff, but claims the land in its own right, by virtue of adverse possession. He prays decree that defendant has no right, title or interest; that the title to the land occupied by the spur is in plaintiff, and that it be
Defendant avers that plaintiff has at no time owned the land included in said right of way; that it is the absolute and unqualified owner of all of the right of way, and has at all times held same in good faith and for railway purposes; that it has been in open, adverse and notorious possession of all the strip intended to be put in issue by the petition, and under color of title and claim of right, and has held the same during all said time, openly and adversely to all persons. It bases these claims upon the allegation that, in 1892, oral contract was made between it and the firm of Simpson-Mclntyre & Company, whereby it was mutually agreed that said company should purchase said land and donate it to defendant, in consideration of its agreement to build a railway track of sufficient length to reach the creamery of said company, and to maintain said track connected with the creamery while same was in operation-; that both carried out this agreement, and thereupon, defendant assumed absolute control, possession and ownership, and at large expense built said spur on the strip; that so it paid full and adequate value for the land; that its track was constructed up on, condition and in consideration of the defendant’s having the right to perpetually maintain the same, and Avould not have been constructed by it without' such understanding and agreement, the understanding and agreement being that the spur was to be the property of defendant,, without condition of reservation, except that it should connect with the creamery company as long as it should be operated at its then location; that the cost of what Avas done by defendant was in excess of the value of the right of way, all of which was expended upon the faith that defendant had a perpetual easement and a good right of way title.
Another branch of its claim is that defendant has for
The text in 3 Elliott on Railroads, Sec. 947, declares that whether land can be acquired by a railroad company through a common-law dedication must be considered an open question; that it has arisen in a number of cases, in some of which it is said that a railroad is so far a public highway that, whenever the owner of land has shown by an unequivocal act or declaration a purpose to dedicate the land to the use of the railway, and the company has acted in reference to and upon the faith of such declaration, it has complete title. It points out, however, that at common law a parol dedication can be made only to the public, and that, since
Watson v. Chicago, M. & St. P. R. Co. (Minn.), 48 N. W. 1129, citing cases from Ohio, Illinois and Kentucky, holds that a common-law dedication of land cannot be made to a railroad company for public use for railroad purposes, and it criticizes cases which merely assume that such a dedication may be made. Lake Erie & W. R. Co. v. Whitham (Ill.), 40 N. E. 1014, distinguishing Smith v. Town of Flora, 64 Ill. 93, holds there cannot be a common-law dedication of land to a- railroad company, because such companies are essentially private corporations. On the other hand, it is held in Indiana and in Texas that there may be such dedication, and that acting on the faith of a verbal agreement to give the right of way will constitute both dedication and acceptance. Sherlock v. Louisville, N. A. & C. R. Co. (Ind.), 17 N. E. 171; Texas & N. O. R. Co. v. Sutor, 56 Tex. 496; Texas & P. R. Co. v. Gaines (Tex.), 27 S. W. 266; Campbell v. Indianapolis & V. R. Co. (Ind.), 11 N. E. 482. There is a remarkable paucity of authorities determinative of the point. We think those discussed constitute about all, and that additional citations on the point have no bearing.
Goulding v. Shonquist, 159 Iowa 647, holds no more than that title to real property may not be acquired merely by open, notorious and adverse possession for the statute period.
Hamilton v. Wright, 30 Iowa 480, does no more than announce the general proposition that an entry by one without color of title or claim of right may subsequently become
Hargis v. Kansas City, C. & S. R. Co. (Mo.), 13 S. W. 680; Libbey v. Young, 103 Iowa 258; Cogsbill v. Mobile & G. R. Co. (Ala.), 9 So. 512; Florida Southern R. Co. v. Loring (C. C. A.), 51 Fed. 932, and Campbell v. Indianapolis & V. R. Co. (Ind.), 11 N. E. 482, are in essence holdings that, where a railroad company enters on land with leave, and constructs and runs its road on the faith of the license, it will be presumed, as against one claiming under the license, in the absence of any limitation to the contrary, that the right of way thus acquired extended to the full statutory width of right of ways.
While Morgan v. Railroad Co., 96 U. S. 716, in a sense assumes that there may be such dedication,, by proceeding as though there were power to make it, the real decision is •whether a dedication made by plat is sufficiently definite and, therefore, estops the revoking of the dedication.
Wickersham v. Orr, 9 Iowa 253, does not deal with a grant to a railroad, and holds that, between the grantee and a third party claiming an interest in land granted, the claimant may show a parol agreement whereby such interest was ■created; and that, while the authorities are not entirely uniform nor, in many cases, free from obscurity, they hold that, if plaintiff builds a wall under parol license from the owner, and a third person takes part of the lot from the owner with notice of such license, the interest may not be revoked by either the owner or his grantee. Des Moines & Ft. D. R. Co. v. Lynd, 94 Iowa 368, is a grant by plat. The power to make a common-law dedication is not the subject of dispute, but seems to be assumed by all parties.
As the point is given no great consideration by appellee, and in view of the condition of the law on the subject, and of the fact that decision may be reached without determining this point, we do not make it the basis of our decision, but confine ourselves to an investigation of whether, under all the circumstances disclosed in the record, appellant has established the parol gift upon which it relies.
2.
The sole evidence on what was done is that, before the track was laid, the roadmaster of appellant met Mr. Simpson, of Simpson-Mclntyre & Company. They went over the ground where the engineers had set stakes to mark out the line of the switch, and thereupon, Simpson said: “The land is yours. Go ahead and take it.” Upon this, the roadmaster said he would like to have Simpson go with him, and have him say what he wanted in regard to tracks. Tailing these words literally, they give absolute ownership- of the land, not only for railroad purposes, but for any purpose. The statement, “The land is yours. Go ahead and take it,” taken alone, and literally, goes beyond what appellant now claims for it. But, as seen, it does not stand alone, and we must resort to all the attendant circumstances that throw light upon the mutual intent. At the time of speaking, therei was no one to serve with the proposed switch except the plant of the speaker, and he had no interest in a switch except to get one that would serve his plant; and it may well be said that
There was no occasion for plaintiff to literally have the title to the land. It appears further that appellant never paid taxes on this land, or had it certified to the auditor as land to which title had been given it; that appellee and his grantors paid the taxes ever since 1892; that, when SimpsonMclntyre & Company bought the land in order to carry out its agreement with appellant, they had title thereto put in their name, and not that of appellant.' And in Paragraph 3 ,of cross-petition, appellant says, after stating that SimpsonMclntyre & Company should procure the land for a right of way, and donate it or convey it, and that, in consideration thereof, defendant agreed to build a railway track, that “defendant agreed to build a railway track of sufficient length to reach said Simpson-Mclntyre & Company’s creamery, known as the Diamond Creamery Company, and to maintain the said track connected with said creamery while the same was in operation.”
The argument that all this is overcome because a railroad “is naturally a perpetual thing,” and it must be presumed also that- a perpetual- easement was intended and accepted by the railway company, does not seem persuasive. And so of the other, that, even had the Diamond Creamery Company no further use for railway connection, the railway company had expended a large sum in building and maintaining its railroad; that the original donor got railway con
We decline to assume that Erickson v. Johnson, 172 Iowa 12, intends to repeal a statute, and find it does not attempt it. It deals with acts constituting notice, and says, merely by way of argument:
“Some of the cases go so far as to hold that where possession is so open and notorious as to raise a presumption of disclaimer of title, actual notice need not be shown, and that disclaimer of the title of the defendant and ouster may be implied from open and notorious possession.”
On examination, it will be found that the case really involves the rule that, where one cotenant makes or openly takes under a deed conveying all, it constitutes a repudiation
2.
It should be added that possession was taken and use had upon consent; that, at the time consent was given, it was, of necessity, for the benefit of the creamery company; that the track was not used for the benefit of anyone else until late in the fall of 1904 or the spring of 1905; that, therefore, waiving all else, the use for the first 12 years was not only permissive, but entirely in harmony with the idea that the only right to use claimed was to serve the creamery company; wherefore,1 the statute of limitations did not start during the first 12 years. And if it be conceded that the statute could run, and -prescriptive title could be made as to the use for the benefit of the industries subsequently built upon the switch line, such use, at all events, did not continue for Í0 years prior to the bringing of suit, on August 30, 1913, because the additional industries were created in the summer of 1907.
“The actual possession and improvement of the premises as owners are accustomed to possess and improve their estate, without any payment of rent or recognition of title in another . . . , will, in the absence of all other evidence, be sufficient to raise a presumption of his entry and holding as absolute owner, and, unless rebutted by other evidence, will establish the fact of a claim of title.”
To this is added that possession, accompanied by the usual acts of ownership, is presumed to be adverse until shown to be subservient to the title of another. The only holding of Wollman v. Reuhle (Wis.), 80 N. W. 919, is that notorious, uninterrupted and unexplained possession for 20 years up to a fence, is adverse as well against the neighbor across the fence as against anyone else. Bishop v. Bleyer (Wis.),
4.
Appellee does not claim the rails and ties and fence, and asks nothing except that the easement terminate. This distinguishes this case from Beatty v. Gregory, 17 Iowa 109.
It is our judgment that the decree below should be, and it is, — Affirmed.'