59 P. 1040 | Kan. | 1900
The opinion of the court was delivered by
We will consider but two of the questions discussed by counsel for plaintiff in error in their brief and argument, viz. :
1. In estimating the amount of damages which the plaintiffs below were entitled to recover under the condemnation proceedings, can the value of the improvements put upon the land by the railroad company be taken into consideration?
2. Can the plaintiffs below recover damages to the land outside the right of way of the railroad company by reason of the construction and operation of the road, the right of way and the land adjacent to it having been sold in separate tracts under the decree of foreclosure and bid in by them at sheriff’s sale long after the construction of the road?
As the defendants in error, Nyce and the Stock Exchange Bank, appealed from the award made by the
If the road-bed, ties, track, etc.,, placed upon the property by the railroad company are to be treated, under the circumstances of this case, as part of the real estate, then the position taken by the defendants in error on the first proposition (which was concurred in by the trial court) is the correct one ; otherwise not. It becomes necessary, therefore, to consider in the outset the nature of the improvements placed upon the land by the railroad company, and their character as affected by the relations sustained toward the public by such companies.
“The general principle to be kept in view, which underlies all questions of this kind, is the distinction between the business wjhich is carried on in or upon the premises, and the premises, or locus in quo. The former is personal in its nature, and articles that are merely accessory to the business, and have been put on the premises for this purpose, and not as accessions to the real estate, retain the personal character of the principal to which they appropriately belong and are subservient. But articles which have been annexed to the premises as accessory to it, whatever business may be carried on upon it, and not pecul
Again, in Northern Central Railway Co. v. Canton Co. of Baltimore, 30 Md. 347, it was held that a railway came within the rule regarding trade fixtures ; that it was not an accessory to the enjoyment of the freehold-, or in any manner necessary and convenient for the occupation of the land by the party entitled to the inheritance. The court said :
“A railway is certainly quite as essential to the trade and business of a railway company, as a steam-engine and the house which may cover it, or any other fixture can be to the miller or the miner. . . . Prima facie, a house with its foundation planted in the soil is real property, yet when it is accessory to trade, and in law a trade fixture, we find all the authorities regard it as personal property. The same doctrine is applicable to the railway in question.”'
See, also, Railroad v. Deal, 90 N. C. 110 ; Albion River R. R. Co. v. Hesser, 44 A. & E. R. C. 125, 84 Cal. 435, 24 Pac. 288; O. R. & N. Co. v. Mosier, 14 Ore. 519, 13 Pac. 300 ; Jones v. N. O. & S. R. R. Co. and Im. Asso., 70 Ala. 227 ; Justice v. Nesquehoning Valley Railroad Co., 87 Pa. St. 28; Newgass v. Railway Company, 54 Ark. 140, 15 S. W. 188. These cases are to the effect that, although a railway company may enter
In the case of Cohen v. St. L. Ft. S. & W. Rld. Co., 84 Kan. 158, 164, 8 Pac. 142, a railroad company had taken possession of a strip of land and constructed its track thereon without any formal condemnation proceedings and without procuring any title thereto or easement therein from the owner of the land. In an action brought by the latter against the railroad company to recover damages for the permanent taking and appropriation of such strip, no recovery was allowed for materials and work furnished by the railroad company itself and used in the construction of its track. In passing on this question the court said :
“ This question we think must be answered in the negative. Of course it must be admitted that where a mere wrong-doer, a naked trespasser, enters upon the land of another, and makes improvements thereon of a permanent character, such improvements become the property of the lahdowner ; and this will apply to railroad companies as well as to others. If a railroad company should enter upon the land of another, without any color of claim of right or privilege, as a mere wrong-doer, a naked trespasser, and construct a railroad-track on such land, such railroad-track would of course become the property of the landowner. . . .
But neither the foregoing principles nor the above authorities apply to the present case. The railroad company in the present case was not a wrong-doer nor a trespasser in any sense. It was a duly organized railroad company under the laws of Kansas, and had a right to build its railroad across the plaintiff's land,
‘ ‘ It has even been held that where a railroad company enters upon land as a technical trespasser, and afterwards procures the- land for its right of way by condemnation proceedings, it is not compelled to pay for the improvements which it itself made upon the land while it was technically a trespasser, and before it legally procured its right of way. (Justice v. Nesquehoning Valley Railroad Co., 87 Pa. St. 28; Daniels v. The C. I. & N. R. Co., 41 Iowa, 52 ; Lyon and wife v. The Green Bay & Minnesota Ry. Co., 42 Wis. 538; Greve v. First Div. St. Paul & Pac. R. Co., 26 Minn. 66,
In A. T. & S. F. Rld. Co. v. Morgan, 42 Kan. 23, 21 Pac. 809, the railroad company dug a well and put in a pump and boiler for the purpose of filling a water-tank on the line of its road, believing that the well and its attachments were upon its own property. When it was discovered that the same were upon the land of another, it was held that the pump and boiler could be removed without paying the owner of the land therefor. The court said :
“It can readily be seen that one of the tests of whether a chattel retains its character or becomes a fixture is the uses to which it is put. ... If the company had placed it there, even under a mistake, for the purpose of ultimately improving the real estate, the law might under this state of facts have held it to be the property of the owner of the real estate; but under the agreed statement it was placed there solely
In the case at bar the railroad company did not proceed to the laying down of its track and' the erection of improvements mentioned until after it had obtained a deed from Blackstone, the owner of the fee in the land. The mortgage held by the bank conveyed no estate, but was merely a lien. The mortgagee was in no sense the owner of the property, and in condemnation proceedings no personal notice was required to be served on him, nor needed he be named in the award. If condemnation had been had before the foreclosure, his rights as mortgagee would have received no consideration, and the value of the ties, track, etc., would have been wholly excluded from the amount of the award. (C. K. & W. Rld. Co. v. Sheldon, 53 Kan. 169, 35 Pac. 1105.)
It is provided in section 7, chapter 68, General Statutes of 1897 (Gen. Stat. 1899, § 1324), relating to the exercise of the right of eminent domain by railroad companies, that proceedings in condemnation may be commenced by a railway corporation after the road has been constructed, and such course was adopted in this case. Had the condemnation been had before the sale of the property under the decree and foreclosure, the value of the improvements upon the land would certainly not have entered into the estimate of the damages incurred by the owner, and the mortgagee by no possibility could have laid claim to them or any part thereof. The improvements made did not become a part of the security under the mortgage, because they did not go to the betterment of the mortgagor’s estate.
"If the defendants desire-to maintain a railroad across the land and to continue the use thereof for railroad purposes, they should be permitted to retain the land and also the improvements they have constructed thereon on payment of the value of the land computed as of the date of the commencement of this action, with interest since that time, without any charge on account of improvements made by the defendants thereon. (Cohen v. St. L. Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138.)”
Upon another ground also property rights in the improvements made by the railroad company upon its right of way, to the extent claimed by the purchaser at the sheriff’s sale, must be denied to the latter. The case in the court below proceeded upon the theory that Nyce, by virtue of his sheriff’s deed, took such title as the mortgagor (Blackstone) had at the time the" mortgage was executed, and this title carried with it the betterments added to the land, put there by the railroad company. If he took title to the extent claimed, then the exclusive estate in and dominion over the land and its improvements were vested in him absolutely, with the resulting power necessarily accompanying such title and dominion to exclude all persons from the land so purchased, and to use and enjoy the same unmolested by the railroad company in any way. As the owner of such an estate he appeared as plaintiff in the court below, and was treated by that tribunal accordingly. If the contention of
“It is the means of communication between one part of the country and another. The interest which the public has in it is greater and more important than the interest which the company has in it. It cannot be supposed that the legislature-, in authorizing its construction, and granting peculiar franchises for its operation and use, ever intended that execution creditors might levy upon parcels of it, and cut it up into sections, and destroy it as a great public thoroughfare. Such a supposition seems to us preposterous. Suppose a mile of the road should be
“We think not. To sell it in parcels would be to sever an artery of commerce. It would affect the whole state in a vital part. Its public means of intercommunication are essential to the prosperity of the people. They are the most efficient appliances of modern civilization.”
In Justice v. Nesquehoning Valley Railroad Company, supra, a railroad company was a trespasser and its entry upon land not in conformity to law. In holding that the irregular proceedings did not operate as a dedication to the landowner of the property of the company placed on the land, so as to enable the owner to recover the value of the improvements, the court, through Chief Justice Agnew, said :
“This is not the case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter, and to place these materials on the land taken Jfor a public use — materials essential to the very purpose which the state has declared in the grant of the charter. It is true the entry was a trespass, by reason of the omission to do an act required for the security of the citizen, to wit, to make compensation or give security for it. For this injury the citizen is entitled to redress. But this redress cannot extend beyond his injury. It cannot extend to taking the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. Then why should the materials laid down for the benefit of the public be treated as dedicated t'o him ? ’ ’
There has been an attempt made by counsel to distinguish the case of Briggs v. C. K. & W. Rld. Co., 56
An order of sale was issued under which the land outside the right of way strip was first sold for the sum of $50 to James F. Briggs, as administrator, and the strip was then bid off by him for $100. A few days after the execution of the sheriff’s deed to Briggs the railroad company made application to the district judge for the appointment of commissioners to condemn a right of way over and across the premises. They were appointed and proceeded in the usual way, allowing $124 for the land occupied and $30 damages to the remainder of the tract. No mention was made of any improvements. Briggs, as administrator and owner of the land, appealed from the award. The trial court allowed the appellant $124 and $30 respectively,
It will be seen that the proceedings had were almost identical with those in the case at bar, and the title of Briggs the same as the title of the defendants in error here. In the opinion in that case Mr. Chief Justice Martin, while asserting that the structures placed upon the right of way were real property, in fact based the decision on the ground that the company had been barred and cut off by the decree in foreclosure from any interest in the lot, which included the structures. He said: “ Unless, therefore, we may judicially declare that these buildings and structures were not and are not real estate, we must hold that they passed by the sheriff’s deed to the purchaser at his sale.” We cannot adhere to the conclusion reached in that decision. While it appears that all the justices concurred, yet on the application for a rehearing Mr. Justice Johnston favored the granting of the same, as appears by the record in the case. We think it should have been declared judicially that the buildings and structures were not real estate, and that the decree in the foreclosure suit did not give to Briggs the right to recover for the improvements. In that case, as in this, the question as to whether the ties, rails and other structures upon the right of way were real estate or personal property was not presented to, considered, or decided by the court in the foreclosure suit. There was no issue upon that question and no adjudication thereon. It cannot be asserted that the materials placed upon the land were changed from personal to real property by the foreclosure proceeding.
In the case at bar, the answer of the railroad company in the foreclosure action averred that it was in
We are not without authority as to the effect of a judgment in foreclosure upon the rights of the parties. In the case of Tex. & Pac. Rly. Co. v. C. S. Hays, 3 Tex. Ct. App. (Civil Cases), 79, before the commencement of condemnation proceedings the landowner had recovered a judgment against the railway company in an action of ejectment to quiet title to the real estate. In the condemnation proceeding it was contended that the company was estopped by the judgment from claiming the material composing that part of the railroad on the land in question. This claim was denied, the court holding that the judgment in ejectment gave to the owner of the land the title to the easement or right of way which the railway company was using and was a trespasser thereon, yet the title to the fixtures and superstructure, although placed upon the land by the company without authority, did not become a part of the land ; that the question as to what were fixtures was not involved in the decision of
In Railroad Company v. Willard, 61 Vt. 134, 17 Atl. 38, certain land, at the time of the construction of a railroad, was encumbered by a mortgage which was afterward foreclosed, the railroad company being a party. The land was sold to Willard. In condemnation proceedings which were then instituted by the railroad company he claimed that the latter was es-topped by the judgment in the foreclosure suit from claiming the railroad or the materials thereof. This claim was denied and the improvements held to be personal property. The court said :
“He (the defendant) also claims that the Essex County Company was a trespasser when it entered and constructed its road, and invokes the doctrine of the common law, that structures placed upon land by a trespasser inure to the benefit of the owner of the land.
“ But the company was not a trespasser as to either the mortgagor or the mortgagee. Not as to the mortgagor, for he consented to the entry and construction of the road. Not as to the mortgagee, for as to third persons, a mortgagor in possession is regarded as the owner, and the mortgagee as having only a lien or security.
“The effect of the decree of foreclosure was, to cut off the right of redemption and thereby convert defendant's conditional title into an absolute title; but in other respects the rights of the parties were left to be determined by the deed."
In Kennedy v. The Milwaukee & St. Paul Railway Company, impleaded, etc., 22 Wis. 581, 587, the liability of a railway company entering upon mortgaged lands to the mortgagee was considered. The court said :
“When the company obtained the right of way, it could not assume that the mortgage would nm be
In the case of Northern Central Railway Co. v. Canton Co. of Baltimore, supra, a railroad was built on the lands of the Canton Company, with a license so to do. The license was revoked and this was followed by two suits, one in ejectment and the other of trespass quare clausum fregit. Judgment was recovered in both ac-^ tions. A subsequent action of ejectment was brought for the road-bed, judgment obtained, and under a writ possession was delivered to the plaintiff in the suit. The rails and other materials which formed a part of the railroad constructed by the appellant were upon the land at the time, and the question arose as to who was the rightful owner of them. It was held that they were trade fixtures, and, no matter how strongly attached to the soil, were to be treated as personal property. The court said :
‘ * If the property replevied did not belong to the appellee at the time the license to the appellant to be upon its land was revoked, it is not perceived how the subsequent suits between them could have changed
It is well settled that where a railroad company commences condemnation proceedings after being in possession of the land sought to be taken for right of way, it is only required to pay for the land, and not for the improvements it has placed thereon. (A. T. & S. F. Rld. Co. v. Morgan, supra; S. F. etc. R. R. Co. v. Taylor, 86 Cal. 246, 24 Pac. 1027; L. N. O. and T. R. R. Co. v. Dickson, 63 Miss. 380 ; C. A. & N. R. R. Co. v. French, 68 Miss. 22, 8 South. 512; Greve v. First Div. St. Paul & Pac. R. Co., 26 Minn. 66, 1 N. W. 816; Ritchie v. K. N. & D. Rly. Co., supra; Railroad Company v. Willard, supra; Jacksonville T. & K. W. R. Co. v. Adams, 51 A. & E. R. C. 544, 10 South. 465; C. & A. R. R. Co. v. Goodwin et al., 111 Ill. 273.)
After much consideration, we are convinced that the decision in Briggs v. C. K. & W. Rld. Co. is contrary to established principles settled by a great number of well-considered cases involving the same question. So far as that decision is based upon argument we think it fails in reason, and when sought to be sustained upon precedent lacks authority. While the doctrine stare decisis has been adhered to by this court with much pertinacity, yet we shall not hesitate to incur the accusation of instability by overturning a rule previously adopted when it is contrary to right reason, and the foundation of which is shattered by the pressing weight of opposing authority.
“ It is the law of this state, that a lotowner can only recover for those damages which he has sustained from the construction or operation of a road subsequent to the time when he acquired his title to the property. If the road has been constructed and is in operation at the time he gets title, he is supposed to have taken it cum onere, and to have paid the lesser price because of the disadvantages. The damages arising from the construction inure to the holder of the fee, and do not pass by the deed which transfers the title.”
In the case of Indiana, Bloomington and Western Railway Company v. Allen, 100 Ind. 409, 414, a farm, at the time a railroad was constructed over it, was owned by one Brittingham, who afterward sold and conveyed the same to Allen. The latter then conveyed the farm, except the strip of land within the right of way, and
“ Upon this testimony, we think it appears clearly that the appellee was not entitled to any damages for the strip of land taken or for the injury done to the remainder of the quarter-section. When he .bought the quarter-section the railroad was upon it; it is fair to presume that the existence of such an incumbrance affected the price paid.
“When the strip of land was taken, the quarter-section belonged to Martha E. Brittingham ; the right to recover all the damages then belonged to her ; that right was a chose in action ; it did not pass to appellee by the warranty deed from Mrs. Brittingham and her husband. No assignment is alleged, and the rule •is that damages to land remaining uncollected do not pass to a vendee.”
See, also, Sennott v. R. R. Co., 59 Vt. 226, 9 Atl. 554 ; Livernon v. Railroad, 109 N. C. 52, 13 S. E. 734; Dows, Agt., v. Congdon, 16 How. Pr. 571; K. P. Rly. Co. v. Mihlnan, 17 Kan. 224.
The defendants in error were entitled to recover only the value of the land occupied by the railroad irrespective of the improvements. In the particular questions of fact answered by the jury, this was found to be |164. The judgment of the court below will be modified, with directions to enter judgment in favor of the defendants in error for that amount. The costs of this court will be divided between the parties.