265 P. 220 | Cal. | 1928
This is an appeal by plaintiffs from a judgment of nonsuit entered after both sides had concluded the introduction of their evidence. The single issue presented is the plea of the statute of limitations, subdivision 2 of section 338 of the Code of Civil Procedure.
Respondents' statement of the facts and of the question involved is accurate and as follows:
"September 22, 1917 — Eloise Wright Porter was granted a life estate in the property in question, with the reversion in plaintiffs' predecessors.
"November 4, 1919 — Eloise Wright Porter deeded parcel 1 to the defendant. This deed made no mention of any life estate.
"November 7, 1919 — Eloise Wright Porter deeded parcel 2 to the defendant. This deed made no mention of any life estate.
"January, February, and March, 1920 — The defendant constructed and put into operation a railroad line over parcels 1 and 2, and has continuously operated said line, carrying freight and passengers thereover, as part of its system, in interstate and intrastate commerce, since said date.
"August 1, 1922 — Eloise Wright Porter died.
"August 14, 1924 — The plaintiffs began this action.
"The plaintiffs are reversioners and the owners of the fee simple title to parcels 1 and 2, the property here in litigation.
[1] "The sole question in this case is whether the statute of limitations began to run against the reversioners at the date of the entry by the railroad or at the date of the death of the life tenant."
Appellants state their position in these words: "Plaintiffs' right to the possession of parcels 1 and 2 matured only upon the termination of Eloise Wright Porter's life estate and with it ripened into maturity their cause of action against the railroad company for continuing to use and occupy parcels 1 and 2 beyond the period limited by their grant." *580
Respondents counter with this statement of their position: "But appellants' action here did not depend on the right to possession. Therein is the distinction. Appellants had no right to possession after the railroad was constructed. The only action they ever had was for damages. "Again respondents assert: "True, the life tenant had given her assent to the use contemplated, but in going in under that assent the railroad necessarily trespassed on the rights of the reversioners and necessarily injured at that time their inheritance. . . . It took the life estate rightfully under the deeds from the life tenant, but it occupied the fee without right. It appropriated the inheritance at that time, and permanently ousted the reversioners from their possibility of a reversion. . . . The railway got only the life estate by the deeds from the life tenant, but it took the inheritance of these reversioners outright."
We think appellants are clearly right and that respondents overcapitalize the rule of public policy operating to shield the railway from an action in ejectment and continue it in possession of the property of another. Appellants' claims are founded upon the right of possession and they are denied that specific relief and relegated to compensation in damages only by reason of the public convenience, but this is far from giving respondents the right to antedate the falling in of the life estate with the claim of trespass or waste. This case is ruled by such cases asPryor v. Winter,
And Akley v. Bassett,
Also the recent case of Newport v. Hatton,
Unlimited authority may also be found in other states supporting these views. In the case of Bartlow v. Chicago etc.Co.,
This question is discussed at length in the case of Webster
v. Pittsburgh etc. Co.,
Holding that the plaintiff and his representatives could institute proceedings to recover possession of the property involved at any time after the death of the life tenant and before the running of the statute of limitations, the court in the case of Cassem v. Prindle,
To the same effect, see Westcott v. Meeker, 144 Iowa, 311 [29 L.R.A. (N.S.) 947, 122 N.W. 964]; also Bohrer v. Davis,
In the case of Hauser v. Murray, 256 Mo. 58, 85 [165 S.W. 376, 384], it is said: "The plea of the statute of limitations is interposed as a defense . . . we are of the opinion that the general rule is applicable, and that neither she (holding as a life tenant) nor any grantee of the estate could claim adversely to the remaindermen, and that the statute of limitations did not begin to run against them until her death."
See, to the same effect, Rogers v. Ogburn,
We see no force in the statement found as dictum in the case of Gordon v. Cadwalader,
[2] Neither is there any applicability here of section
Appellants' right of action arose on the death of the life tenant and the suit was instituted within the time allowed by statute reckoned from this event.
The judgment is reversed.
Curtis, J., and Seawell, J., concurred.