Nos. 2636 and 2637 | Wyo. | Feb 15, 1955
Lead Opinion
The Town of Glenrock brought action against several hundred defendants seeking to quiet its title to certain lots, streets, alleys and various other strips and parcels of land lying within its dedicated borders. Included were the lands comprising the right of way of the Chicago & North Western Railway Company, a Wisconsin corporation authorized to do business in this state, and consequently this company was also named as one of the defendants. The area of this right of way is a part of the lands which the plaintiff had assumed to lease to an oil company for oil and gas purposes, and the obvious purpose of the action against the defendant railroad company was to establish in the town a title to the mineral rights underlying the right of way. The petition alleged the plaintiff to be the owner in possession of the lands and claimed for the town a title in fee simple, praying that such fee simple title be adjudged
Plaintiff’s entire evidence consisted of (1) a stipulation that the street on each- side of the right of way was dedicated by the original patentee or those who derived their right and title by mesne or direct conveyance from such patentee and that such dedicatory plats might be received in evidence as conclusive proof of the right of the dedicators to execute and record the same, and (2) dedicatory plats numbered 2 through 7, some showing streets on either side and paralleling the right of way where the plat was traversed by it and the others where not so traversed showing the street paralleling and adjoining the right of way. It might also be noted that in at least one instance the platting showed a street to overlap the right of way by some 30 feet.
The evidence of the defendant and cross-petitioning railway company, consisted of a stipulation which in
Although each of the stipulations here mentioned purport to be the stipulation of “all other parties claiming title to the railroad right of way”, these were, of course, only binding upon the parties signing the same, which are the plaintiff and the defendant railway- company.
It is also noted that there is no evidence to show when the buildings and improvements were placed on the right of way; when the several activities took place or the date of the leases or licenses mentioned, except possibly in a couple of instances where dates in 1917 and 1920 for town water mains and sewer are specified.
The historical facts disclosed by this evidence are simple.
The relevant substance of the March 3, 1875 Act of Congress, granted to a railroad company a right of way of 100 feet on either side of the center line of a route established over land of the public domain upon the filing of profile maps therefor with, and receiving the approval of, the Secretary of the Interior. The predecessors in interest of the defendant railway company complied with those requirements and received the necessary approvals of the secretary on February 6, 1886 and November 29, 1886.
On March 20, 1889 the United States government issued to one Dorsey a patent called a “coal certificate”, to certain lands which were traversed by the right of way. This patentee and his grantees thereafter subdivided portions of these lands which were traversed in part by the right of way, and caused plats to be made of the subdivisions and recorded them in accordance with the provisions of Sections 29-1101, 29-1102, 29-1103, Wyoming Compiled Statutes, 1945.
The plaintiff town claims it acquired title in fee simple to the lands in dispute by virtue of the coal certificate patent and the dedicatory proceedings, and that such title is superior to that of the railway company. The town, however, professes no purpose to disturb the physical enjoyment of the railway company’s easement. We can only interpret this as meaning that the town asserts no present right to possession and occupancy of the right of way surface, except possibly for the use of such portions of the surface as may be required for the enjoyment of subsurface values.
In considering the plaintiff’s appeal, it is only necessary to examine the evidence in the record in order to ascertain that there was no error in the lower court’s finding that the plaintiff had no title whatsoever.
The stipulation merely said that the persons dedicating streets on either side of the disputed right of way had the right to do so. The dedicatory plats did not purport to show the right of way as being dedicated to the town nor to the public any more than the platting of lots and blocks purported to show they were dedicated to the town or to the public. In fact the contrary appears by these plats, for the lands involved were shown as railroad right of way, which, if anything, tended to acknowledge the right of the defendant railway company and its predecessors.
The trial court’s finding that the appealing railway company did not have a fee simple estate was, in effect, a finding that it had not established a title by adverse possession, as it was upon that theory that the company claimed title. Consequently, the single question presented upon the railway company’s appeal is, did the court err in determining that the company had not by adverse possession acquired a title in fee to the lands in dispute. In holding as we do, that there was no such error, we need only say that we find no evidence fixing a date from which the statute of limitation may be said to have run in order to have established such adverse title.
Although the record shows the court considered the evidence, relative to uses to which the right of way had been put, insufficient to show either an abandonment of possession under the grant, or that such uses amounted to notice of an adverse possession, and although the town has not taken an appeal from that part of the decree which adjudged the railway company has an easement for railroad purposes and all other purposes incidental thereto, we do not feel that the issues required or admitted of the court’s making any determination based upon the construction or interpretation of the grant under the Act of 1875.
The railway company elected to stand solely upon its asserted title by adverse possession. From statements made by the court and tacitly acquiesed in by counsel, the jurisdictional limit of the decree auth
(Nos. 2636 and 2637;
Vacated and modified in part, otherwise affirmed.
Rehearing
ON PETITION FOR REHEARING
OPINION ON REHEARING
The railway company’s petition for rehearing and its brief in support thereof, charges that we have misconceived undisputed evidence which is said to establish a time long in advance of the necessary period when adverse possession was asserted. Notwithstanding we felt that close attention and careful consideration had already been given to all the evidence in the record, the testimony of each witness was again examined, giving particular attention to that portion to which reference was made in the rehearing brief. We are unable to discover either directly or by just inference where any witness specified any time when the claimed adverse possession might be said to have commenced. Although counsel attempts to amplify statements of appellant’s witnesses by asserting that such testimony referred to certain times or periods,
The appellant also attempts to re-argue the contention that its title to the right of way was a fee title good as against “all possible interested parties” and all defendants originally named in the action. This court has previously pointed out that when the reason advanced for a rehearing is simply re-argument and repetition of counsel’s views which have already received consideration, we will decline to re-travel those paths. Owl Creek Irrigation District v. Bryson, 71 Wyo. 30" court="Wyo." date_filed="1953-02-17" href="https://app.midpage.ai/document/owl-creek-irrigation-district-v-bryson-1422124?utm_source=webapp" opinion_id="1422124">71 Wyo. 30, 70, 80, 253 P. 867" court="Or." date_filed="1927-02-10" href="https://app.midpage.ai/document/miller-v-miller-3838226?utm_source=webapp" opinion_id="3838226">253 Pac. 867 258 P.2d 220, 224.
However, if counsel do not understand what was meant when we noted that —“From statements made by the court and tacitly acquiesced in by counsel, the jurisdictional limit of the decree authorized as being within the scope of the issues presented, was recognized as being one which would determine only as between themselves the respective rights of the town and the railway company”, we may say that counsel will not be permitted to repudiate or withdraw from a commitment made in open court during the trial of a cause.
In the course of the trial and before rendition of judgment, the Court observed in part:
*399 “ * * * I do not know how many parties counsel says are involved in this lawsuit. We only have two of them in Court here at the present time, so I take it that the Court’s decision in this matter is limited to these two litigants.”
To which Mr. Neely, one of appellant’s counsel, replied :
“I would think so, Your Honor.”
Then the court said:
“In determining the question of ownership or title the Court’s decision could not reach beyond the two parties, * * * ”.
This understanding was recognized in the decree itself, which provided, — “It is specifically ordered that the names of all Defendants named in the original petition not involved in the issue herein shall be omitted from the title in this decree; * * * ”.
We consider this exchange between court and counsel binding.
We also remind counsel that the railway company’s cross-petition was against the plaintiff alone; that the cross-petition only alleged that plaintiff, or someone claiming under plaintiff, claimed an interest in the disputed lands adverse to the railway company, and it only alleged that plaintiff and anyone claiming under plaintiff were without right, title or interest in the lands. The single defendant claiming under the plaintiff was its lessee oil company. The trial was therefore limited solely to issues between the railway' company and plaintiff.
These issues were not enlarged as the appellant claims, because plaintiff prayed in its own action against the railway company and the other defen
Petition for rehearing denied.
Concurrence Opinion
I concur. Perhaps I should add a thought of my own.
Counsel for the railway company say that we should have decided the nature of its title. It would seem to me that under the facts in this case, when this court decided that the Town of Glenrock had no title to the railway right of way, that disposed of the whole case, and it was not necessary to say anything more. It made no difference whether the railway company had merely' a possessory title, or for that matter whether it had a title at all. So if this court had undertaken to pass upon the exact nature of the title of the railway company — a title in fee by reason of adverse possession — it would have been a gratuitous undertaking on the part of the court. It would have been obiter dictum. See 21 C.J.S. 309, Section 190. Courts do at times indulge in obiter dictum, but to have done so in this case would have subserved no beneficial purpose. The situation would not have been much different if the action had originally been instituted by the railway company against the Town of Glenrock to quiet title. All that the railway company would have needed to prove would have been a possessory title. Unless the town could have shown a better title, the railway company would have prevailed. But when the possessory title in the railway company in such case would have appeared, and on the other hand no title in the town was shown, then, it would, just as here, have been a gratuitous undertaking on the part of the court to have