24 Cal. 474 | Cal. | 1864
This is an action of ejectment. It is averred in the complaint that the defendant is “ a body politic and corporate, duly organized under and by virtue of the laws of the State of California;” that “on the 27th day of May, 1862, the said plaintiffs were seized and possessed of and lawfully entitled to the possession of all that certain turnpike road and the land upon which the same has been constructed, built, and excavated,” lying between certain termini named; “said road being about fifty feet in width, bounded on each side by the public lands of the United States, and wholly within said County of Sierra; also, all the bridges, toll gates, and toll houses upon said road and the line thereof, or attached thereto; together with all and singular, the hereditaments, rights, and privileges unto the said road, land, bridges, toll gates, and toll houses, belonging or in anywise appertaining. * * * And being so
seized and possessed and entitled to the possession of the above described property and premises, the defendant, by its agents, on said 27th day of May, 1862, wrongfully and unlawfully entered upon the same, and wrongfully and forcibly ejected the plaintiff therefrom, and still wrongfully withholds the same and the possession thereof from the plaintiffs.”
The answer admits that the defendant is a corporation, duly organized, etc., but denies all the other allegations.
The trial was by the Court. The defendant appeals from the judgment and from the order overruling defendant’s motion for a new trial.
The plaintiffs, at the trial, to prove their title alleged in the complaint, offered in evidence the judgment roll in an action brought by them against the defendant, by which it appeared the plaintiffs, on the 23d day of September, 1861, recovered a judgment against the defendant for the sum of nine thousand eight hundred and forty-eight dollars. They also offered in evidence an execution issued upon said judgment, together
The defendant objected to the introduction of these documents, and on grounds sufficiently comprehensive to include all the questions of error that we shall have occasion to consider.
The discussions in this case have taken a wide range, and involve questions of law of great practical moment, which have not been passed upon as yet in this State by the Court of last resort. In considering the case we shall, however, refrain from passing upon questions a decision of which is not necessary to a just determination of the appeal upon its merits.
The general question raised by the record is, whether the plaintiffs by the Sheriff’s deed aquired any property rights, and if they did, then were the rights so acquired of the character recognized by the.law as the basis of an action of ejectment.
1. The franchise of the defendant did not pass by the Sheriff’s deed, nor by the Sheriff’s return under the Act of 1850, (Wood’s Digest, 118, Sec. 24,) and for the following reasons : Franchises are special privileges conferred by Government on individuals, which do not belong to the citizens of the country generally by common right. (A. & A. on Corps. Sec. 4.) The persons to whom such privileges are granted hold them in personal trust, and therefore they cannot be transferred by
Again: the sale does not purport to have been a sale of the franchises of the company, and for that reason the plaintiffs can have no interest in them. All that was offered for sale, and all that the plaintiffs bought was the “ road.” Even if the plaintiffs by their purchase acquired a title to the “road,” still they could not claim the franchises as appurtenant to the road, for franchises are principal things, and lie in grant as such. They are appurtenant to nothing.
2. The plaintiffs acquired nothing by the purchase of the “road” to which the action of ejectment has any remedial relations. “ Road” is a legal term, strictly synonymous with the term “ way,” and in the complaint, and throughout all the title papers of the plaintiffs, their identity is fully recognized. A way is an easement, and consists in the right of passing over another man’s ground. (Wash, on Eas., 161.) It is an incorporeal hereditament, a servitude imposed upon corporeal property, and not a part of it. It gives no right to possess the land upon which it is imposed, but a right merely to the party in whom the way is vested to enjoy the way. Neither is it considered that the owner of the way is entitled, by reason of such ownership, to a participation in the rents and profits arising from the land upon which the easement is imposed. (Wash, on Eas., 8.) A deed of a way or of a right of way would pass to the grantee no title to or interest in the land.. It may be true, as was held in Sparks v. Hess, 15 Cal. 186, where the owner of a private bridge, who also owned the land on which the bridge rested, had conveyed the “ bridge and all the privileges and appurtenances appertaining or in anywise belonging to said bridge,” that the deed passed the title of the
3. But there is another ground upon which we hold that the plaintiffs acquired no title to the land traversed by the road, and no possessory interest in it. The defendant had no such title or interests to be transferred. The reason is found in the want of capacity in the company to hold lands by title. The capacity of corporations to take and hold lands in full ownership was unlimited at common law. The vast social and political abuses engendered by this state of things induced the passage of the statutes of mortmain, ranging from the 9th of Henry III to the 9th of George II. The Act of 1850, pre
It appears that the lands traversed by the Truckee Turnpike are public lands of the United States, and it is urged that inasmuch as settlers on public lands are considered as the owners of their possessory claims as against all the world except the Government, and are therefore allowed to sue and are held liable to be sued in ejectment, that symmetry of decision requires that the like rule should be applied in the case of turnpike corporations whose roads cross public lands. The argument proceeds upon a false analogy. Settlers, as natural persons, have an unlimited capacity to acquire estates in land, and to hold them indefinitely when acquired. Turnpike companies, prima facie at least, can take no estate in land above the level of a servitude upon it. Again: the possessory interests of the settlers named are not analagous to easements or servitudes.
4. But the plaintiffs did not acquire a title to the “ road” or way, which, so far as words are concerned, they purchased at the Sheriff’s sale.
The way levied upon and sold as the property of the company did not belong to it by any proprietary right. The way was piiblici juris. Its uses were not only public, but it belonged to the public by title. All the interest that the company had in the matter was by reason of the fact that it
Without passing upon the other interesting and important questions raised by counsel, we consider that the ruling of the Court below, in admitting the plaintiff’s documentary evidence of title, was erroneous; and inasmuch as the facts found by the Court do not warrant the judgment, the judgment is reversed, and the cause remanded with directions to enter judgment, upon the findings, for the defendant.