Wood v. Truckee Turnpike Co.

By the Court, Shaftek, J. 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 — 486 — with the officer’s return thereon, showing that the Sheriff on the 28th of October, 1861, levied. “ upon all the right, title, interest, claim, and property of the Truckee Turnpike Company in and to the Truckee Turnpike Road, a highway,” etc.; and “ advertised all the above described property for sale at public auction,” etc. * * * “And on the 23d day of November, 1861, * * * sbld the same to D. S. Wood and son for the sum,” etc. The plaintiffs also offered in evidence the' Sheriff’s deed to the plaintiffs. The deed is not inserted in the record, but we shall assume its subject matter to be identical with the subject matter levied and advertised and sold, viz: “ All the right, title, interest, claim, and property of the Truckee Turnpike Company in and to the Truckee Turnpike Road, a highway,” etc. 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 — 487 — forced sale, (Munroe v. Thomas, 5 Cal. 470 ; Thomas v. Armstrong, 7 Cal. 286,) nor by voluntary assignment (Redfield on Railways, 419-422,) unless by the permission of Government, and even then, if a special mode of transfer is pointed out, that mode must be followed. Therefore the franchises of the defendant did not pass to the plaintiffs by the Sheriff’s return nor by his deed, for the mode of sale prescribed by the Act of 1850 was not followed. 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 — 488 — land on which the bridge rested. In the first place, a bridge is a visible structure, and not in itself an incorporeal hereditament ; and in the second place, the abutments of a bridge are considered a part of it. (King v. West Biding of York, 7 East. 588; Bardwell et al v. Jamaica, 15 Vt. 438.) The fact that a certain descriptive term used in a deed has been held to include what it obviously does include, is certainly not authority for holding that another term includes what it obviously does not include. The authoritative definition which wé have given of the term “ way” shows that neither land, nor rents of land, nor profits of land, nor any possessory rights in land, are included in its meaning. If the plaintiffs, then, took anything by force of the term “ road,” they took nothing but a right of way. But it is well settled that an action of ejectment will not lie in favor of a 23arty to try his right to enjoy an easement, nor will it lie against one claiming an easement in land to .try his right to enjoy it. (Childs v. Chappell, 5 Held. 246, 251; Wash, on Eas., 568.) And the reason is obvious—the very subject matter of controversy is incorporeal. It is for that reason that an easement “ lyeth in grant, and not in livery.” It is for that reason that the owner of a way cannot be dis-seized or otherwise ousted of it; he can only be “ disturbed” or “obstructed” in its enjoyment, and for such injury the remedy is by action on the case at common law, or by bill in equity. The rule is stated in Tillinghast’s Adams, p. 19, as follows: “ Ejectment is maintainable only for corporeal hereditaments.” 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 — 489 — viously referred to, is a statute of mortmain, in so far as it limits the capacity of corporations to take and hold lands. The provision is as follows: “ They (corporations) may take and hold such real and personal estate as the purposes of the corporation shall require.” Under this provision the capacity is not absolutely fixed. It depends upon occasion. An estate in land adequate to the necessities or reasonable convenience of one class of corporations might be inadequate to the needs of another. We consider, however, that a turnpike company, prima facie, has no occasion for any larger interest in land than a way over it. This has been fully demonstrated, as a general truth, by a wide and unbroken observation and experience. On this point the authorities are numerous and decisive. We cite Tucker v. Tower, 9 Pick. 108; 3 Kent, 532, 8th ed. 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 — 490 — had both the right and the power to collect tolls on the line of the road, as a compensation for the public service it had performed by opening a public road for the public good. In legal theory, “ A turnpike is a public highway, established by public authority for public uses, and is to be regarded as a public easement, and not as private property. The only difference between this and a common highway is, that instead of being made at the public expense in the first instance, it is authorized and laid out by the public authority, and is made at the expense of individuals in the first instance; and the cost of construction and maintenance is reimbursed by a toll levied by public authority for this purpose. Every traveller has the same right to use it, paying the toll established by law, as he would have to use any other public highway.” (Commonwealth v. Wilkinson, 16 Pick. 176.) In pursuance of this doctrine it has been considered (Erie and Northeast Railway v. Casey, 26 Penn. 287) that the land is not dis-burdened of a railroad easement by the surrender, forfeiture, or other determination of the charter, but remains subject to it still as a subsisting public right. 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.