60 P. 541 | Kan. Ct. App. | 1900
The opinion of the court was delivered by
'Defendant in error obtained a judgment against the plaintiff in error on the 19th day of October, 1897, perpetually enjoining the plaintiff in error from taking possession of or in any way
The findings of the court upon which this judgment is based are as follows :
“The court, being fully advised in the premises, finds the issues generally in favor of the plaintiff and against the defendant; and finds that the condemnation proceedings instituted by the- defendant, as averred in the petition and answer filed herein, are void and of no effect as to the strip of land 16 feet wide described in plaintiff’s petition, as against the rights of the plaintiff herein. The court further finds that, prior to the institution of said condemnation proceedings, the plaintiff was and for along time had been in possession of said strip of land, using it for railroad purposes similar to those for which defendant sought and was*.about to take under said proceedings.”
There are twelve assignments of error, including that based upon the denial of the motion for a new trial. The second assignment challenges the- sufficiency of the petition. . The third is that the judgment is against the evidence. The fourth, fifth, sixth, seventh, eighth and ninth are in substance the
In the argument it is first contended that the judgment is not based upon any irregularity in the condemnation proceedings, but because of the prior rights of the defendant in error in the land, and that by reason thereof the plaintiff in error had not the light to
The notice in this case is that the commissioners will meet on Monday, the 10th day of June, at ten o’clock a. m., and commence at a point near the confluence of the Kansas and Missouri rivers, and proceed thence in a southerly direction to a point on the state line between Kansas and Missouri up to which the Kansas City Suburban Belt Railroad Company, a Missouri corporation, has now constructed its railroad; thence running in a northwesterly and westerly direction to Ohio avenue ; thence westerly, and southwesterly on Ohio avenue, formerly Second street, in the city of Kansas City, Kan., to the east bank of the Kansas river; thence across 'said river to the west bank thereof ; thence southerly and westerly along the' west bank of said river, through the southeast quarter of section 10 and northeast quarter of section 15 and northeast quarter and southwest quarter of section 14, the northwest quarter of section 23, the northeast quarter of section 22, of township 11, range 25 east, to a point near the east-and-west line through the center of said section 22 ; thence in a southwesterly direction through the northeast and southeast quarters of sec
It appears from the evidence that under this notice the plaintiff in error intended to condemn this sixteen-foot strip of land heretofore described, and that only; that the commissioners met pursuant to said notice about a half-mile from the confluence of the two rivers named in the notice as the place of meeting and went from there to this strip of ground and appraised the same. The route designated in this notice, it appears from the evidence, is the general line of the" plaintiff in error as it had been constructed long prior to the inception- of this proceeding. In other words, it is apparent from the entire record that the plaintiff in error, by its proceedings in condemnation, was attempting to appropriate this strip of land to its own use without notice to the defendant in error.
It is said in the brief of counsel for the- plaintiff in error that the record discloses the fact that the defendant in error did have actual notice of the con
It is next contended that the defendant in error had no such right or interest, in the land as would require notice of the condemnation proceedings to be given it. This contention is baseá upon the further claim that the defendant in error, although having its track built over a part of this strip for many years, was simply there as a licensee by the license of the owners of the fee, and the subsequent grantees, under whom they entered, had notice and were present at the time the appraisement was made, and therefore the defendant is bound. The contract under which the defendant in error entered upon the strip of land and constructed its line of road is in writing, is duly executed by the parties, but is not acknowledged and was not recorded. It is contended that an easement of way in land can only be created by deed duly executed, witnessed, acknowledged, and recorded, and in support of this authorities are cited from Massachusetts, Connecticut, Wisconsin, New York, and Ohio, special stress being laid upon the two authorities cited from the supreme courts of Massachusetts and Ohio. In Cook v. Stearns, 11 Mass. 536, cited by counsel, there was a demurrer to a plea of justification of a trespass under a license. The demurrer was sustained. Upon appeal, the supreme court held that a license was created by parol, and that unless the plea disclosed .a grant by deed or writing it came within the statute of frauds. It said :
“But a permanent right to hold another’s land for a particular purpose and to enter upon it at all times without his consent, is an important interest, which*287 ought not to pass without writing, and is the very object provided for by our statute.”
The other cases cited are to the same effect; that is, that an interest in land can only be created by writing, and, in effect, that an easement is such an interest. In the case of Wilkins v. Irvine, 33 Ohio St. 143, the license was created by a writing. The court held that it could not rise to the dignity of a deed or an instrument creating an interest- or a right in land, because it was not sealed, witnessed and acknowledged as provided for by the statute of that state. We have no such statute. A deed need not have a seal. It need not be witnessed. It is good between the parties without acknowledgment or being recorded. Registration only imparts notice and can only be had when acknowledged or proved, but between the parties and purchasers with notice is good as a conveyance, although neither sealed, witnessed, acknowledged, nor recorded. Our conclusion upon this proposition is that the writing created an easement .in the defendant in error, and that it was entitled to notice of the condemnation proceedings ; that owing to the condition of the land sought to be condemned, the fact that it was a part of a city and not of country, or farm, that the particular part of the section designated in the notice was many times subdivided, and held by numerous owners, and that it was apparent from the evidence that the plaintiff in error sought to obtain the condemnation without the knowledge of the defendant in error, the court was justified in finding and holding the condemnation proceedings void as against the defendant in error, which was in possession.
It is contended further that this, being a license only, was revoked by abandonment. It would not seem necessary to discuss this contention, in view of
It is contended further that as to a part of this sixteen-foot strip of land, it was subject to condemnation for the use of the plaintiff in error, because as to that part (about 90 feet, possibly 100 feet) at one end of the strip, the track of the defendant in error was not constructed thereon until April 25, 1895, the day before the plaintiff in error filed its petition in the district court praying for the appointment of appraisers in the condemnation proceedings. They say that as to this part of the strip the defendant in error was a trespasser, and being a trespasser was entitled to no rights in the premises, entitled to no notice of the condemnation, had no status to attack the legality thereof, and hence, as to that part of the strip, the injunction ought not to have applied. The defendant in error subsequently acquired the title in. fee to the entire strip. The evidence shows that it became necessary to straighten its' line by an occupation of this end of the strip at that time by reason of the fact that the plaintiff in error had deprived it of its connection with the Schwarzscliild-Sulzberger plant by changing the head-blocks
The plaintiff and defendant are rival companies,' maintained to afford switching facilities between the various enterprises of Kansas City and the different railway systems. Both were seeking entrance to this dressed-beef plant, each apparently endeavoring to obstruct the progress of the other. The plaintiff in error had constructed its main line ; it had switches upon the adjoining-strip of land, by which it was connected with the plant of Schwarzschild-Sulzberger. It simply wanted to enlarge its facilities and restrict the facilities of its competitor. It had not platted its line proposed to be constructed upon this strip of land ; it had made no survey; it had set no stakes. Defendant in error was in possession of the greater part of it. As before stated, it straightened its track by reason of a necessity occasioned by the conduct of the plaintiff in error. It first occupied this 80 to 100 feet of ground. It occupied it the day before the plaintiff in error began its condemnation proceedings. Under the law, as it seems to us well established, it could not acquire a right of way previously occupied by another line, either by purchase or condemnation. See Mills on Eminent Domain, section 47. It is there said:
“When different corporations desire the same location, the one that is prior in point of time is also prior in point of right, and the first location, if followed by construction, operates to secure the prior right.”
This statement of - law by Mr. Mills is supported by the decisions of the courts in Waterbury v. Dry Dock &c. Railroad Company, 54 Barb. 388; The People v. New York and Harlem Railroad Company, 45 Barb. 73;
The court committed no error in the progress of the trial to make a retrial necessary. The judgment is affirmed.