37 Neb. 477 | Neb. | 1893
This was an action of ejectment brought in the district court of Saunders county, Nebraska, for the possession of a strip 200 feet in width along the west side of the north half of the southeast quarter of section 3, township 14, range 7 east, of the 6th P. M. This strip has been occupied for right of way, depot grounds, and other railroad uses by the defendant since October, 1876. The eighty-acre tract of which said strip was a part was patented by the general government to the Union Pacific Railroad Company March: 6, 1875, though the patentee under an act of congress wa3 entitled to such patent long before its date and anterior to any transaction hereinafter narrated. As the above strip was part of the northwest quarter of said southeast quarter the history of said forty-acre tract need alone receive our attention.
On the 30th day of July, 1873, the Union Pacific Railroad Company contracted in writing with George H. Stocking to convey to him, in consideration of prompt payment of the purchase price, the forty-acre tract last described, reserving, however, “ a strip of land 400 feet wide, to be used by the party of the first part (the Union Pacific Rail
Plaintiff claims that he ought to recover from the defendant the right of way strip conveyed by Stocking and wife, notwithstanding such conveyance and the above quoted language, for the alleged reason that the deed of Stocking was but a quitclaim deed of a strip of which the Union Pacific Railway Company at the time held the legal title; that by such quitclaim deed the grantee was only vested with such interest in the property as was at the time held by the grantor, which was less than the legal title, which never passed until vested in plaintiff; and that plaintiff by virtue of said legal title should have had a judgment of ouster against defendant in this ejectment suit. This claim has sufficient plausibility to deserve consideration.
At the time Stocking made a conveyance of the right of way to the defendant, the Union Pacific Railway Company was holding the legal title to the forty-acre tract as trustee for the use of Stocking, and compellable to convey to him upon his making payments as agreed. Each assignee under Stocking took only the interest which his immediate assignor had in said tract; meantime the defendant was holding continuous possession under and by virtue of its deed from Stocking. There can be no question that the original entry of the defendant upon the right of way was lawful, and so continued, at least while Stocking held the contract in question. We are at a loss to conjecture just when it is assumed that such possession became wrongful. It seems, however, to be contended by the plaintiff, that at the date of the deed of the Union Pacific Railway Company to plaintiff, such possession, as against plaintiff, became illegal. In this view we cannot concur. It might be that the covenants in the deed of the Union Pacific Railway Company were already broken when made, but that does not affect the merits as between the parties to this controversy. If, upon due legal proceedings, it shall be established that there has
Affirmed.