61 N.J.L. 322 | N.J. | 1898
The opinion of the court was delivered by
This was an action of ejectment brought by. George Spottiswoode against the Morris and Essex' Railroad Company to l’ecover possession of two parcels of land situate in the city of Orange. Both parties claim title under Ezra Gildersleeve.
The Morris and Essex Railroad Company was incorporated January 29th, 1835. By the sixth section of the act of incorporation the company was authorized and invested with all
Gildersleeve, by a deed executed December 24th, 1835, granted and conveyed to the railroad company as follows:
“ To all to whom these presents may come, I, Ezra Gilder-sleeve, of the township of Orange, New Jersey, send greeting:
“Whereas, ‘The Morris and Essex Railroad Company/ in pursuance of the provisions of an act of the legislature of the State of New Jersey entitled ‘An act to incorporate the Morris and Essex Railroad Company/ have surveyed a route for a railroad from the village of Morristown to intersect ‘ The New Jersey Railroad and Transportation Company ’ at Newark, in the county of Essex, which route has been laid over the following-described tract of land of the said Ezra Gildersleeve, situate in the townships of Clinton and Orange, in the county of Essex, and State of New Jersey.
“ Beginning in the line of lands of Abner Crowell, in the township of Clinton, in line with the centre stakes of the track of the Morris and Essex railroad, and running from thence, in range with the said stakes, on a course north, thirty-six degrees east, about five chains, so as to include a strip of land one rod and a half wide on both sides of said centre stakes, containing about thirty-seven hundredths of an acre of land, more or less, and then beginning, Second, in line of land of Cyrus Freeman, the same being in the township of Orange, in line of the centre stakes of the railroad as aforesaid, and from thence, running parallel with the centre stakes of said road, on a course of north, thirty-six degrees east, about twenty chains across all the lands of the said Ezra Gilder-sleeve, in the township of Orange, so as to include a strip of
“ Now, be it known that the said Ezra Gildersleeve, in consideration of the sum of one hundred dollars to him in hand well and truly paid by the said ‘ The Morris and Essex Railroad Company/ the receipt whereof is hereby'acknowledged, hath and by these presents doth grant, bargain, sell, convey and confirm unto the said ‘The Morris and Essex Railroad Company/ and to their successors forever, the right, liberty and privilege of entering upon the tract of land above described, by its officers, agents, engineers, superintendents, contractors, workmen and other persons in their employ, and to take possession of, hold, have, use, occupy and excavate the same, and to erect embankment's, bridges and all other works necessary to lay rails, and to do all other things which shall be suitable or necessary for the completion or repair of said road or roads.
“ To have and to hold the said tract of land and premises unto the said ‘The Morris and Essex Railroad Company/ and to its successors forever, for the purposes above mentioned and for all the other purposes mentioned in the said act of incorporation.”
This deed was recorded in the county clerk’s office on the 20th of December, 1836. Upon the execution and delivery of the deed the company constructed a single-track railroad •on the property described. This single track remained in use until 1886 or 1887, when the company laid a second track, making a double-track railroad.
The controversy in this case relates to the title of the railroad company through the tract secondly above described. Shortly after the execution and delivery of this deed fences were erected on each side of the centre line of the railroad, distant from the centre line one rod and a half. By whom these fences were erected does not distinctly appear. By these fences the land apparently set apart for the use of the .railroad company was delineated on the ground as one rod
The evidence shows that Gildersleeve remained in possession of the land on each side of this strip up to the fence. By his will, dated March 3d, 1846, and proved May 4th,. 1846, he devised all of his real estate to his son, Cyrus, who, by a deed dated December 15th, 1852, and recorded March 23d, 1853, conveyed to Edwin G. Smith. The description in the deed from Cyrus to Smith for the premises conveyed embraced within its metes and bounds the entire premises occupied by the railroad compány with an exception in these words: “Not including the Morris and Essex railroad.” By deeds of conveyance from successive grantees the premises conveyed by Cyrus Gildersleeve to Edwin G. Smith became vested in George Spottiswoode, the plaintiff in this case.
There was evidence that these fences were built before the1 ground was graded, at least before the railroad was used, and that they were post and rail fences. They were so located as that they enclosed for the railroad a strip of land on each side of the centre stakes one rod and a half wide, making a strip of land for railroad purposes three rods in width. There was evidence also that the Gildersleeves used the land outside of these fences, on the west side, mostly for pasture, and on the east side mostly for cultivation. Lighthipe, who acquired title under Smith in 1855, testified that when he got his deed the fences were there on both sides of the railroad and were there all the while he was the owner. He also testified that he used part of the premises for pasture and part for cutting grass. A surveyor, who made a survey in 1869, testified that he found post and rail fences, and that they were one and a half rods from the centre line of the railroad, and that the fences, as found by him in 1869, were delineated in black lines on the map, a distance of one and a half rods from the
In 1891 the railroad company erected fences on each side of their railroad two rods from the original centre line, and in 1892 a third track was laid, occupying in part the strips of land now in controversy. This action was brought in 1895. At the time this suit was brought the railroad company was in possession of the premises in question and had been in possession since 1891.
The evidence of possession from 1835 to 1891 by Ezra Gildersleeve and those who succeeded to his title was such, at least from 1852, the date of the d'eed from Cyrus Gildersleeve to Smith, as was adapted to establish an adverse possession by parties who were in possession under deeds of conveyance conferring color of title.
The trial judge left the questions of fact to the jury with instructions which expressed accurately the legal rules by which title may be acquired by adverse possession, and the verdict of the jury determined that issue. . The propriety of the verdict under the judge’s instruction is not by the certificate submitted to this court.
The contention of the counsel of the defendant is that the doctrine of adverse possession is inapplicable to premises in the situation in which these premises were. On the other hand, the contention is that by a practical location .immediately after the execution and delivery of the deed by Ezra Gildersleeve to the company, and a possession in a legal sense adverse, the title became vested in the plaintiff.
Under this head, the first position assumed by the defendant’s counsel is that a possession which is adverse in a legal sense for a period of twenty years will not give title, and that, the company being actually in possession of the premises when this suit was begun, the action cannot be maintained. The theory of this defence is that no man can acquire title to the lands of another without a continuous adverse possession
Possession obtained and held as prescribed by the first section of this act will confer a title paramount to the claims or rights of all other persons. Such a possession will bar the issue in tail, as well as the tenant in tail, against whom it commenced its operation. Wright v. Scott, 4 Wash. (U. S.) 16, 24. Possession in conformity with the second section of the act will also confer a valid title, not only against the tenant in tail, but also all persons claiming by descent per formam doni through him. Croxall v. Sherrerd, 5 Wall. 268, 287. The section last referred to in using the words “all prior locations, rights, titles and conveyances or claims,” in • describing the title extinguished by such possession, re
The first section of the act of 1787 does not apply to this case—the plaintiff making no title under a possession for sixty years. Nor is the second section of the act pertinent to the consideration of this case—a fair bona fide purchase from a person supposed to have a legal right and title and a possession of thirty years thereunder not being within this issue. The legislation that applies to this subject is section 16 of the act of 1874 (Gen. Stat., p. 1977), which was section 9 of the act of February 7th, 1799 (Rev. L., p. 411). Neither of these sections—sections 1 and 2 of the act of 1787 and section 9 of the act of 1799—conflicts with or modifies the other. If the case presented is within the first section of the act of 1787 or within the second section, or within section 9 of the act of 1799, a party may avail himself of the rights conferred by this legislation respectively and several]}'. In Den, ex dem. West, v. Pine, 4 Wash. (U. S.) 691, 695, Mr. Justice Washington remarks that there is no express repealing clause in the act of 1799 of the preceding act of 1787, nor such repugnance as would operate as a repeal by implication. “ The length of possession prescribed by the first act is thirty years, and by the latter twenty. But by the former this possession will not avail the defendant unless it was commenced or was founded on a proprietary right, &c., or was obtained by a bona fide purchase of the land of some person in possession and supposed to have a legal title thereto. * * * The act of 1799 is entirely of a different character. It is unimportant under that act whether the defendant, or the person under whom he claims, entered into the possession under,an apparent title or tortiously, and the limitation is arrested in its progress by any subsequent disability, the duration of which forms no part of the computation of time. Here, then, are two acts of limitation applying to two different subjects,
This leads to a consideration of the ninth section of the act of 1799, now the sixteenth section of the act of 1874. Gen. Stat., p. 1977, § 23. Does possession in compliance with that section confer title or a mere right to bring an action in ejectment? The defendant took possession in 1891 and was in possession when this suit was brought. In this situation the contention is that although Gildersleeve and those succeeding to his title may have been in adverse possession for twenty years prior to 1891, yet the right to maintain this action was lost by the entry of the company and its peaceable possession from 1891 to 1895. On the other hand, the contention of the plaintiff is that by adverse possession for a period of twenty years prior to 1891, the plaintiff acquired a title which was not divested by the defendant’s entry and subsequent possession. The section now under consideration was adopted from a part of the first section of 21 Jac. 1, c. 16. That section in the English statute is usually divided into four subdivisions, the fourth of which is “that no person or persons shall at any time hereafter make any entry into any lands, tenements or hereditaments but within twenty years next after his right or title which shall hereafter first descend or accrue to the same, and in default thereof such persons so not entering and their heirs shall be utterly excluded
In Stokes v. Berry, 2 Salk. 421, it was held that “ if A has had possession of lands for twenty years without interruption, and then B gets possession, upon which A is put to his ejectment, though A is plaintiff, yet the possession of twenty years shall be a good title in him as if he had still been in possession.” The same case is reported under the name of Stocker v. Berny, 1 Ld. Raym. 741. The report in the last citation is as follows: “If H. has possession of land for twenty years uninterrupted, and then B. gains possession, upon which II. brings ejectment, though H. is plaintiff, yet his possession for twenty years will be a good title for him as well as if H. had been then in possession, because possession for twenty years now, by virtue of the statute 21 Jac. 1, c. 16, § 1, is like a descent at common law which tolls the entry.” Other cases to the effect that possession adversely for twenty years is evidence of a title sufficient not only to defend but to maintain ejectment under the statute of Jac. 1, are cited by Mr. Finlason in his note to 3 Reeves’ Hist. Eng. L. 310. Ballan. Lim. 23; 6 Bac. Abr. 369, tit. “ Limitations of Actions” B. “An uninterrupted possession for twenty years not only gives a right of possession which cannot be divested by entry, but' also gives a right of entry; so that if. a person who- has such possession is turned out of it he may lawfully enter and bring an ejectment for its recovery, upon which he will be entitled to judgment. Thus a possession for twenty years in this case forms a positive prescription.” 3 Cruise Dig. 436, ¶ 21.
In Sedgwick & Waite on the Trial of Title to Land, after discussing the theory on which statutes of limitation rested, the effect of possession in conformity with the statute is stated
There was in this case a possession that must, in view of the verdict of the jury, be regarded as adverse for more than twenty years before the company erected its fence in 1891. The entry of the defendant at that time, in the face of such an adverse possession, was forbidden by the statute, and would neither give the defendant title nor bar the plaintiff from the title which had accrued in virtue of that possession prior to the company’s entry.
In considering the effect of the statute of limitations no reference has been made to the disabilities which affect the running of the statute. No question of that kind arises in this case. We simply decide that adverse possession under our statute for the period of twenty years confers title by
A question of more importance remains to be considered. The defendant’s counsel insists that the doctrine of adverse possession is not applicable to the company with respect to the property in suit. This contention rests on the fact that the property was granted to the company for use for the purposes of its franchises. Hence, the argument is that, although the plaintiff and those with whom' he is in privity of estate may have been in possession of the property in suit for the period of twenty years, under circumstances that would otherwise amount to an adverse possession, the defendant still had the right to enter and take possession whenever the exercise of its franchises required the use of the premises. Cases are cited which hold that no length of time will justify an encroachment upon streets or public highways. These cases do not touch the question now before the co'urt. Streets and highways are vested in the public authorities for purposes that are exclusively public—a purely public right with no semblance of private ownership, and lands so appropriated to public use are absolutely inalienable. The possession by a railroad company of its roadbed is the possession by a corporation as its private property to enable it to perform a public duty.
In Illinois Central Railroad Co. v. O’Connor, 39 N. E. Rep. 563, the Supreme Court of Illinois held that the exclusive adverse possession for twenty years by a farmer, as part of his farm, of a strip of land adjoining .a railroad track was a complete bar to the assertion by the railroad company of an easement in such strip. In that case the right of way granted to the railroad company was of land of the width of two hundred feet, “to have and to hold for all lawful uses and purposes incident to a full and indefeasible title in fee-simple or in any way connected with the construction, preservation, occupation and sole enjoyment of the said railroad and lands of the width aforesaid.” The condition was that the company
In Massachusetts there is a statute which provides “ that if the owner or occupant of any land adjoining any railroad has taken or shall take into his enclosure any part of the land belonging to such railroad as located and established,
The English decisions are to the same effect. In Norton v. L. & N. W. Railway Co., L. R., 9 Ch. Div. 623, land was conveyed to the company in fee-simple in 1833. In 1860 the grantee demised the. premises to the plaintiff for ninety-nine years and the plaintiff had the enjoyment of the same, unquestioned by the railway company, until 1874. The suit was for damages for a nuisance by emitting smoke from the company’s locomotive. It appeared that after the company took title it erected a hedge along its property, and outside of the hedge made a ditch. The railway company, by way of counter-claim, contended that the plaintiff was not entitled to the land on which his building was erected, but that the company was entitled to the strip between the hedge and the ditch. The plaintiff, among other things, contended that
There is a line of cases holding that property acquired by a railroad company and held in good faith for future needs has incidents of property devoted to public use, although not actually in use for the company’s business. Thus, where a company, having in its charter an exemption from taxation, has not completed its road and is engaged in the work of construction, the exemption will extend to property not actually used for other purposes, which has been acquired as the means of carrying into effect the objects of the charter, and is fairly within the plan upon which the work is being executed, and will be necessary for the business of the company when its contemplated improvements are completed. State, Morris and Essex Railroad Co. v. Haight, 6 Vroom 41. So, also, the
But the plaintiff, to establish his title, does not rely exclusively on the statute of limitations.
The grant from Ezra Gildersleeve to the railroad company relates to two parcels of land, the one situated in the township of Clinton, the other in the township of Orange. The deed recites that the company had surveyed its route for a railroad, which route had been laid over the following described tract of land of the said Ezra Gildersleeve, situate in the townships of Clinton and Orange, in the county of Essex. The first parcel is described by courses and distances, referring to the centre stakes of the location of the track, “ so as ‘ to include a strip of land one rod and a half wide on both sides of the centre stakes.” This description of this part of the premises is a definite description of a strip of land one rod and a half on each side of the centre line. The strip comprised in this description, which is the strip through the first parcel, may be said to be fixed with precision. The description of the strip of land through the second parcel, which is that which is now in controversy, is indefinite. The reference to the centre stakes of the road, with courses and distances, indicates a location longitudinally, which is without a precise designation of width. The language in that respect is, “ so
Another circumstance of great weight in the decision of this question is the fact that the locus in quo, on which the company was authorized to enter, take possession and build its railroad, was not fixed by precise boundaries. The company was authorized to enter, take possession and construct its railroad on this part of the grantor’s premises, not to exceed two rods wide on each side of the centre stakes. It laid one track on the property, in 1835, and operated it as a single-track railroad. Shortly after or during the construction of that track, the fences referred to were erected at a distance of one rod and a half from the centre line. For a period of fifty-six years the grant to the company, indefinite in terms as to width, was located on the ground as of the width of three rods, as the boundaries were indicated by fences.
■ A certificate will be made in compliance with this opinion.