Wallace v. Chicago B. & Q. R.

Beard, Chief Justice. Plaintiff in the district court, appellant here, alleged in his amended petition, in substance, for a first cause of' action, that the defendant was a corporation; that he was the owner of certain lots situated in Central Addition to the town (now city) of Casper, and entitled to the possession of the same. That defendant well knowing that plaintiff was such owner did, on or about October 10, 1910, wil-fully and wrongfully take possession of said lots and excluded plaintiff therefrom to his damages in the sum of $5,000.00. For a second cause of action, he averred that about May 1, 1891, one Wright was the owner of the north half of the southeast quarter of section four in township thirty-three north of range seventy-nine west, and on said date laid out and platted said property in lots and blocks as such addition and filed said plat or map in the office of the County Clerk of Natrona County. That Wright conveyed all of said addition to one Champion, Trustee, by deed recorded May 24, 1894. That about March 28, 1883, plaintiff by diverse mesne conveyances irom said Champion, Trustee, all of which were duly recorded, became the owner of the lots in controversy, and has ever since paid the taxes thereon. That about October 31, 1910, defendant attempted to acquire title to said property by warranty deed from William F. Dunn and Mary A. Dunn, said deed purporting to convey said north half of the southeast quarter of section four. That at the date of the execution of said deed the defendant well knew that said land had been platted into lots, blocks, etc., as said Central Addition to Casper. Alleges the taking of possession by defendant and damages as in the first count, and prays, “I. For five thousand ($5000) dollars damages suffered by the plaintiff in being deprived of the premises aforesaid by the defendant. 2. For a decree that the plaintiff is the owner of said premises, and that the defendant has no right,, title or interest therein, and for recovery of the said premises by the plaintiff, and the ejection of the defendant therefrom. 3. For such other — 38 — and further relief as to the court shall seem meet and proper. ’ ’ The defendant by its answer denied the allegations of the first cause of action except that it was a corporation. And answering the second cause of action admitted it was a corporation, averred that the Dunns were the owners of the land October 31, 1910, and in possession of the same, and on said date defendant in good faith and for a valuable consideration, and without notice or knowledge of any claim, right or title thereto by plaintiff, acquired from said Dunns by warranty deed, the said premises. Denied the other allegations of said count. For a further defense, defendant alleged, that at all times mentioned in the amended petition it was and now is a Railroad Company and engaged in the business of a common carrier, inter-state and intra-state for hire. That since October 31, 1910 defendant has been in possession of the lands in question, holding the same adversely to plaintiff under the deed from the Dunns. That since said date the defendant for the purpose of conducting its business as a common carrier for hire, and in good faith without knowledge that plaintiff had any claim or title to the premises, and with the knowledge, acquiesence and consent of plaintiff, has made valuable and lasting improvements thereon exceeding in value the sum of four thousand dollars. That said lands have become a necessary and component part of its railroad, and that to surrender said land to plaintiff would seriously interfere with the operation of said railroad and prevent defendant from performing its duty to the public as a common carrier. That the value of said lands at the time defendant entered into possession of the same and immediately prior to the time it made the improvements thereon did not exceed the sum of two hundred and fifty dollars. Wherefore plaintiff is'estopped from claiming title to said lands. — 39 — Plaintiff replied, admitting that defendant is a railroad company engaged in business as a common carrier, and claims title to the lots under the deed from the Dunns, and denying the other allegations of the answer, and alleged that plaintiff has been the undisputed owner of the lots since March 28, 1893, and no action has been brought by defendant or its grantor to recover the title or possession, and pleaded the statute of limitations. The case was tried to a jury, and after the evidence as to the title to the land was concluded, counsel for defendant made the following statement: “We can see we are liable to some damages for taking the property. We are prepared to put on evidence to show what the damages are. We think it is up to the plaintiff to state what the damages are, which he had not done. At the same time we are anxious to avoid further suit by putting the whole matter before this jury. We realize Mr. Wallace here purchased this property innocently, notwithstanding the fact that all precautions were taken by the officers of the Burlington road right of way men, attorneys, and all others, but still they must pay Mr. Wallace something.” The defendant then called a witness, who testified that he had been engaged in the real estate business in Casper since January 1905, and was acquainted with the property in controversy, and that it was a cow pasture enclosed by a wire fence in 1910, without any streets, alleys or marks in it. He was then asked: “In 1910 what was that property worth ? ” To which counsel for plaintiff made the objection: “Objected to, I. object to this testimony for the reason that it is incompetent; irrelevant and immaterial what the lots were worth in 1910, or in 1892, or any other time, for the reason that this is an action in ejectment to recover specific property, and entirely immaterial what the lots were worth in 1910. , Absolutely tends to •prove no issue involved in this suit.” The court overruled the objection, to which ruling the plaintiff excepted. To understand the court’s ruling it is necessary to state tiiat while the petition is substantially in form an action in — 40 — ejectment the'prayer was also for general relief. And the answer alleged the value of the property taken by defendant in 1910, which was denied by the reply. We think the rule has become well settled that when a railroad company having the power of eminent domain, but without exercising the same, has taken possession of land necessary to the conduct of its business, either with or without the consent of the owner, but with his knowledge, and has constructed its road and is operating the same as a common carrier, the land-owner cannot recover possession of the land, but is limited to his action for the damages sustained by reason of such taking. (Roberts v. Northern Pacific Railroad 158 U. S. 1. 11; 15 Supp. Ct. 756; 39 L. Ed. 873; Goodin v. Cincinnati Canal Co., 180. St. 169; 98 Am. Dec. 95; Guernsey v. Northern Power Co., 160 Cal. 699; 117 Pac. (Cal.) 906, 36 L. R. A. (N. S.) 185 and notes; Crescent Canal Co. v. Montgomery 143 Cal. 248, 76 Pac. 1032; 65 L. R. A. 940; Flynn v. Beaverhead County 49 Mont. 347; 141 Pac. (Mont.) 673; Miller and Lux v. Enterprise C. & L. Co. 169 Cal. 415; 147 Pac. 576; Stuart v. Colorado Eastern R. Co., 61 Colo. 58; 156 Pac. 152; State ex rel Twiss v. Superior Court 93 Wash. 429; 161 Pac. 68; 9 R. C. L. 860, Sec. 29; 15 CYC. 999.) In the present case there was at least a question as to the validity of plaintiff’s title under the evidence contained in the record. But we are relieved from deciding that question by the statement of counsel for defendant above quoted; but the evidence is sufficient to show good faith on the part of defendant in attempting to acquire title to the property in 1910, and in accepting a warranty deed from Dunn and wife. It is also sufficient, in our opinion, to warrant the conclusion that plaintiff knew that the road was being constructed over the land. The defendant had taken possession of the lots under the deed from Dunn, was engaged in constructing its road and in making other improvements necessary to its operation and had expended several thousand dollars therefor long before this action was commenced. Open, notorious and con41 tinned possession of real estate under color of title is sufficient evidence of notice to the owner to start the running of the statute of limitations in favor of an adverse claimant. (Black v. Tenn. Coal, Iron & R. R. Co. 93 Ala. 109; 9 South 537; Murray v. Hoyle 92 Ala. 559; 9 South 368; King v. Carmichael 136 Ind. 20; 35 N. E. 509; 43 Am. St. Rep. 303; Wilson v. Williams’ heirs 52 Miss. 487; Close v. Samm 27 Ia. 503; Key v. Jennings 66 Mo. 356; Craig v. Cartwright 65 Tex. 413; Davis v. Baugh 59 Cal. 568; 1, CYC 998; 1 A & E Enc. Law, 832, et. seq.) We think that rule is applicable to a ease like the present one to the extent of tending to prove such knowledge and assent to the possession by the defendant as to prevent the recovery of the possession of the premises, and to remit plaintiff to an action for damages. In this case it further appears that on December 8, 1914, more than two years before this action was commenced, an agent of plaintiff, residing in Casper, wrote to the defendant stating that plaintiff was the owner of the lots and asking if the Company wished to purchase them. The defendant replied making an offer for them. No further negotiations seem to have taken place between the parties. There is also another significant fact tending to support the conclusion of knowledge 'on the part of plaintiff. The reply denying knowledge of the possession by defendant was not verified by him, but by one of his attorneys, and although the evidence showed the open and notorious character of defendant’s possession, and the above referred to correspondence was introduced in evidence, the plaintiff being present at the trial and testifying in his own behalf that he resided in Colorado and had never been to Casper and had never seen the lots until the time of the trial, he did not deny actual knowledge or information of defendant’s possession from the time it took possession, which plaintiff alleged and defendant admitted was October 1910. Plaintiff having made no objection and having taken no action until long after the road was constructed and in operation, — 42 — the case comes clearly within the rule first herein stated, and the district court correctly ruled that plaintiff was not entitled to recover possession of the premises. In that situation of the case, the plaintiff having offered no evidence in support of his claim for damages, there was but one of two courses for the court to pursue, viz: either direct a verdict for defendant, or proceed with the ease as an action for damages. The court took the latter course and directed the case to proceed as an action in the nature of an action in condemnation. The Supreme Court of Colorado in Stuart v. Colorado Eastern R. Co. 156 Pac. 152-156, in considering a somewhat similar case said: “In such cases in some states a, suit in the nature of an action in equitable ejectment may be brought to compel condemnation and payment; in other states the action is termed trespass to try title, similar to’ejectment; in other jurisdictions injunction may be resorted to in the first instance, which is converted into a condemnation proceeding; while in others the owner may bring a direct action in the nature of an action in condemnation. But the form or name of the action is immaterial. Such actions are all akin to condemnation suits, and are to compel condemnation and payment for the right of 'way taken and the damages occasioned by the taking. ’ ’ In this case the defendant pleaded, and introduced evidence to the effect that this land was necessary for railroad purposes, and alleged the value of it when taken. There does not seem to be any substantial reason why, under the pleadings in the ease, the just compensation guaranteed by the constitution to the plaintiff could not be awarded in this action as well as in another suit, and thus avoid a multiplicity of actions. Plaintiff, however, was content to rest his .case solely upon the proposition that he was entitled to a judgment for possession, and declined to offer any evidence as to the value of the land taken. The defendant then proved the value of the land in 1910 when it took possession; and the court instructed the jury to return a verdict in favor of plaintiff for the value so proven, with interest — 43 — from October 31, 1910, which it did, and the court rendered judgment accordingly. _ Plaintiff’s contention in this court is that he was entitled to judgment for possession, the enforcement of which judgment he conceded should be stayed for a reasonable time to allow defendant to bring condemnation proceedings, in which case he should recover not only the value of the land taken, but also the value of the improvements placed thereon by defendant. In other words he insists that the defendant should forfeit to him the improvements and then pay him their value. That we do not consider either the law, equity, or justice. Holding as we do that under all of the circumstances disclosed by the record it sufficiently appears that the railroad company in good faith under color of title took possession of the premises and made the improvements thereon; and that the evidence is sufficient to establish notice to plaintiff of such occupation, and without objection on his part. He is not, therefore, entitled to more than the value of the land at the lime it was taken with interest from that date, but not to the value of the improvements. The just compensation to which he is entitled and which is guaranteed to him by the constitution, is payment for what he has lost and no more. As said by the Supreme Court of Illinois in C. & A. R. R. Co. v. Goodwin 111 Ill 273, 53 Am. Rep. 622: “The just compensation required to be given is for that which is taken from the owner, and which is of value to him, and not for something he never owned.” It would unnecessarily extend this opinion to cite and review the large number of decisions we have examined on this subject, and we shall cite only the case of (J. T. & K. W. Ry. Co. v. Charles S. Adams, 28 Fla. 631, 10 South 465; 14 L. R. A. 533) in the opinion of which case many decisions on the question are reviewed.' The plaintiff was deprived of the possession of his land in 1910, and by his inaction has lost the right to recover possession. Under the particular circumstances of the case,-just compensation for his loss is the value of the land at the time it was taken, with interest from that date. — 44 — That, amount he was awarded by the judgment. The judgment of the district court is affirmed. Affirmed. PotteR, J., and Blydenburgh, J. J. concur.