Chicago & Northwestern Railway Co. v. Sioux City Stockyards Co.

Ladd, J. I. All parties hereto are corporations, each of plaintiffs operating a railway entering into or passing through Sioux City, and the defendant conducting the stockyards at that place. In 1885 or 1886, James E. Booge and four • others organized the Booge Packing Company, and acquired the property in controversy, in connection with Block 17 of the annexed plat. Booge, in behalf of this company, requested the. Sioux City & Pacific Railway Company (to whose property the Chicago & Northwestern Railway Company succeeded in 1901) and plaintiffs, other than the Willmar & Sioux Falls Railway Company, to construct railway tracks over and across Lots 7, 8 and 9 in Block 13; Lot 12 in Block 16; Lots 3, 4, 5, 8 and 9 in Block 17; Lots 5 and 8 in Block 18; Lot 4 in Block 19; Lots 9, 5 and 11 in Block 19 — all in Floyd City, an addition to Sioux City. The petition alleged that an agreement with said railway companies then was entered into, whereby the Booge Packing Company undertook to ^dedicate and grant to- the railway companies, their successors and assigns, an easement to a strip of ground 16 feet in width across said lots, for the purpose of constructing railway tracks in order to serve the packing house and its business and the stockyards of the Union Stockyards Company, and that the railway companies accepted said dedication and easement, went into actual possession of said strip and constructed permanent embankments and railway tracks thereon, extending the entire length thereof, at a large expense, and, in pursuance of said agreement, have operated and maintained the same continuously up to the present time. The Willmar & Sioux Falls Railway Company subsequently acquired a one-fifth interest in anything acquired by the other companies. The plaintiffs say that they have been in adverse possession of said strip of land for more than [663] 20 years; that the defendant is the successor of the Union Stockyards Company and claims some interest therein; but plaintiffs aver that defendant has acquiesced in plaintiff’s maintenance of the tracks, and that whatever interest it has is subject to their claim thereto, and they pray that title to said strip be quieted in them as against any adverse claim on the part of defendant. For answer, the defendant admitted that it claimed an interest in the premises, but denied all other allegations save the organization of the companies. 1. railroads: specialnt ^°r terminaiion. On hearing, the trial court concluded that plaintiffs were entitled to the relief prayed, but whether because of adverse possession or the acquiescence of defendant in their alleged claim of ownership does not appear. The burden was on plaintiff to prove that it had acquired such title to the strip of ground in controversy as that it was entitled to have the relief prayed. "Whether defendant’s claim thereto be weak or strong is quite immaterial, save as this may bear on the inquiry as to whether title is in plaintiffs. The main facts are undisputed. The Booge Packing Company was organized in 1884 or 1885 by James E. Booge and four others. Its plant was located on Block 17 of the annexed plat, and it acquired the lots over which the right of way in controversy is claimed. Booge was president and general manager of the company. The Union Stockyards Company had been organized for some time, and its yards were located east of Prospect Street. The railroads of plaintiffs, other than the Sioux City & Pacific Railway Company, connected with the stockyards track at or near the corner of First Street and Chambers Street. The Sioux City & Pacific Railway Company, whose successor is the Chicago & Northwestern Railway Company, constructed two tracks from near the, corner of Dace and Lafayette Streets in a southeasterly direction to Chambers Street, to serve the packing house. In 1886 or 1887, Booge, as representative of the packing company, negotiated with the rep [664] resentative of the several railway companies for'the extension of these lines so as to connect with the stockyards tracks on Prospect Street. This resulted in an agreement which was to be reduced to writing by the late J. H. Swan, attorney for one of the companies, and signed; but this was never done. Booge testified that the packing company was to give the right of way over the lots from Dace Street to Prospect Street in consideration of the extension of the tracks; that the tracks-were laid and used by the railroad companies over which to haul the products of the packing house and hogs to it; that all companies were to make use of the tracks, but he did not know that obtaining stock from the yards was mentioned, but that was a part of his purpose; that the tracks were not used up to 1892, save to serve the packing company’s plant. Towsley, the local superintendent of the Chicago & Northwestern Railway Company, testified, but appears to have known little personally concerning that of which he spoke. Underwood, division superintendent of the Chicago, Milwaukee & St. Paul Railway Company, confirmed Booge’s testimony and swore that the railroad companies had “used— jointly operated — each company operates its own trains over them (tracks). . '. . Up to five years ago, they were operating the tracks.” Spencer, division superintendent of the Chicago, St. Paul, M. & O. Railway Company, testified that the packing company and the Union Stockyards Company were to furnish the right of way and the companies were to furnish the trackage; that Col. Swan was to prepare the contract ; that the tracks were to be owned by the roads jointly and were operated by them until 1900. Haakinson, manager of the stockyards company, stated that the packing company was to furnish the right of way; that its duration was to be inserted in the contract to be drawn by Swan; that he and Booge were to procure ordinances from the city, permitting construction of the track in the streets and alleys; that the railway companies were to haul no live stock over the tracks except from the stockyards; that the railway companies did [665] the switching on these tracks for about two years, each furnishing a crew for three months’ rotation; that then the stockyards company procured an engine and did all the hauling on these and the stockyards’ tracks in pursuance of a written contract referred to later; that the yards of the Union Stockyards Company were flooded in 1890 and abandoned as stockyards in 1892. Eaton, president and general manager of the Sioux City Stockyards Company, testified that the Sioux City Stockyards Company was organized in 1894 and took over the property of the Union Stockyards Company in 1895; that it succeeded also to the ownership of the lots in controversy; that it established its yards south of the plat on which it laid tracks; that it carried out the agreement as to hauling on the tracks of its assignor, the Union Stockyards Company, until 1900, when it arranged with the Union Terminal Company to do the switching, which company did this for three years, owing to objection by the railway companies when the Sioux City Stockyards Company did the hauling again, and .so did until 1907. The stockyards companies and Union Terminal Company had maintained the tracks for five or six years, and at about this time, the Chicago & Northwestern Railway Company made some repairs on the west part of the two tracks, but none were made by any company east of Chambers Street; that, in 1907, owing to certain rules of the Interstate Railroad Commission, the Sioux City Terminal was organized by the Sioux City Stockyards Company, and the switching has been done by that company since over these and other tracks in the stockyards district connecting the plaintiff railways with the stockyards, and through this with packing 'houses; that the terminal and stoekj'ards companies have operated these tracks for the last 17 years; that, during this time, aside from storing and receiving some cars on the west end of tracks by the Chicago & Northwestern Railway Company, the repairs mentioned, and running over the lines once or twice by the several railway companies, in order to advise the defendant of their claims, the plaintiffs have had nothing [666] to do with these tracks during that time; that the only possible use of these tracks, save in connection with the stockyards system, was in the storage of cars by the Chicago & Northwestern Railway Company; that they do not now reach the packing houses or stockyards; that the tracks are insufficient to handle the business coming to these, and a new system of tracks should be inaugurated; that these tracks reach the-packing houses only by connecting with the stockyards tracks,, and for these the particular tracks in controversy are used only for a short distance; that the Booge Packing Company ceased to operate its plant in 1895; that the tracks in controversy could be used by plaintiffs in no other way than for the storage of cars by the Chicago & Northwestern Railway Company, and the stockyards company owns the tracks connecting therewith. Ordinances were procured as proposed. There was no evidence tending to show what width the proposed right of way should be, nor was the manner of conveying a right of way spoken of, nor does the record contain anything other than mentioned bearing on the extent of plaintiff ’s interest in said strip of land, unless it be certain ordinances procured as proposed through Booge and Haakinson, and a. contract under which the tracks in controversy have been used. The ordinances give the railroad companies the right to-lay their tracks on the streets and alleys from Dace Street to Prospect Street. The contract bears date June 18, 1890, and was signed by the Union Stockyards Company and by the Chicago, St. Paul, M. & O. Railway Company only. The evidence is undisputed, however, that the tracks have been dsed under this contract since, the only change being that charges for switching have been increased. It recites the location of the tracks to the yards of the Union Stockyards Company and the packing house of James E. Booge & Sons; that the railway companies ‘ ‘ either own or have permission to operate and use lines of railroad connecting their several systems of railway in Sioux City with said tracks” of the stockyards com [667] pany and with the packing house; that it is 'deemed for the best interests of all parties that the stockyards company ‘ ‘‘have the exclusive handling and operation of said tracks, and it was mutually agreed that during 10 years the railway companies shall deliver to the stockyards company at the transfer track on First Street, all cars loaded with different materials destined for the yards or persons connected therewith or to the packing house, and that the stockyards company shall haul said cars to their destination and shall haul cars both empty and loaded received at the packing house or stockyards to the severa] companies for transportation, and for the purpose of carrying out this agreement, the said parties of the second part hereby lease to the party of the first part for the period of this agreement hereinafter mentioned, the said tracks on First Street from the west side of Chambers Street in Central Sioux City to the connection with the tracks- of said first party (stockyards) and the tracks leading to the packing house of the said James E. Booge & Sons; and during the continuance of this agreement, said first party is to have exclusive handling and operation of all cars between the said transfer track and the west side of said Chambers Street and said yards or packing house or other points on said tracks hereby leased or shipped therefrom.” The stockyards company undertook to furnish all- necessary engines and motor power and all labor necessary to handle the cars, and was to receive $1 per car for its services. Such is the record before us, stated somewhat in detail owing to our inability to reach the same decision as did the district court. Even in this contract, ownership of the railway companies is not asserted. It merely recites that they “either own or have permission to operate and use.” Nor is anything to be found in the record, binding defendant to its performance. By a sort of common consent, it and the terminal companies did the switching according to its terms. The railway companies were in actual possession only about two years when such possession was transferred under the [668] terms of this lease. If they pretended to own the fee to the strip • occupied by the tracks, there was no evidence of such a claim. 2. Easement: creation: presumption: railroads. In the absence of some showing to the contrary, a grant or gift of ground for right of way is presumed to be of an easement therein only. Brown v. Young, 69 Iowa 625; Hileman v. Chicago, G. W. R. Co., 113 Iowa 591. And a grant of an easement for particular purposes having been made, the right thereto terminates as soon as the purposes for which. granted cease to exist or are abandoned or are impossible. National Guaranteed Manure Co. v. Donald, 4 H & N. 8, 16; Dennis Long & Co. v. City of Louisville, 98 Ky. 67 (32 S. W. 271); Hahn v. Baker Lodge, 21 Ore. 30 (28 Am. St. 723, 13 L. R. A. 158); Bangs v. Potter, 135 Mass. 245; Central Wharf, etc., Corp. v. Proprietors of India Wharf, 123 Mass. 567; 14 Cyc. 1194. [670] 3. EASEMENT: creation: creation for special purpose: how proved.4. PLgADIna: answer: defendant utilizing plaintiffs' allegation. 5. PLgADING: issue, proof and variance: general denial: evidence admissible: quieting title. [668] If, then, the right, of way was granted for the specified purposes of being used by the railway companies to haul or have hauled cars to and from the plant of the Booge Packing Company aiid the yards of the Union Stockyards Company, it must have terminated when the plant and yards were abandoned. The petition alleges a grant for particular purposes; for therein it is said that it was of "an easement in and to a strip of ground 16 feet in width over and across said lots and all of them for the purpose of constructing and maintaining railroad tracks for the purpose of serving said packing company and its business, the general public having business therewith, and the stockyards, then known as the Union Stockyards, and then owning and operating a stockyards plant adjacent to said lots and on the east side thereof, and said railroad companies then accepted said dedication and easement so agreed upon and granlied • • • and went into actual possession of said strip of ground so dedicated and granted." The evidence heretofore [669] recited establishes the grant precisely as so alleged, and that neither the plant of the packing company nor the stockyards is longer operated. No other purpose appears to have been contemplated. Booge testified that these purposes were what induced him to enter into the arrangement. Iiaakinson swore that such was the purpose had in the construction of the tracks. While none of the representatives of plaintiffs testified that these were the purposes to be served, the circumstances permit of no other inference. The tracks were to connect these plants with the railway systems and were not intended as parts of their through lines of railway. The oral agreement was never reduced to writing, though this- was to be done by Swan. The matter of a deed was not mentioned, though the exaction thereof would have been likely, had a permanent easement been contemplated. The cost of laying these particular tracks does not appear. The width of the fight of way was not suggested. At the time, but two industries were interested; i. e., the packing company and the stockyards company. These were to be tracks for the joint use of four or five railway companies. There was no possibility of such joint use except in the service of these two companies. None of the companies except the Chicago & Northwestern Eailway Company could serve any industry-over these tracks, and the Chicago & Northwestern Eailway Company’s use is limited to making use of them only in serving the defendant over connecting tracks and. for storing ears at the west end. Even this storage seems to be in transferring to and from the Sioux City Terminal Company, for it to haul to and from the defendant’s yards or the packing houses. Aside from this use by the Chicago & Northwestern Eailway Company, the duration of which does not appear, none of the plaintiffs have been in possession since about two years after the tracks were laid. Changing crews who did the switching every three months proved impracticable, and, as soon as the stockyards company procured an engine, it took possession of the track, .and this [670] was never resumed by the railway companies save as stated concerning the Chicago & Northwestern Bail-way Company. That an easement has been granted for particular purposes may be inferred from facts and circumstances proved, quite as readily as from direct evidence, is apparent, and we are of opinion that no other conclusion can well be drawn from the record before us. Appellees contend, however, that, to be available, the issue as to whether the use of the right of way was to be for particular purposes should have been raised by the answer. If this were so, the point would not be well taken, for plaintiffs so alleged in their petition. Having so done, there was no occasion for defendant to plead such limitation. In any event, the burden is on plaintiffs to prove the gift of a permanent easement, and, if the gift was of less than that, they have failed, and the cvidence was pertinent to the issues as raised by a general denial. We have discovered no evidence of any assertion of more than a gift or grant of the right of way for particular purposes, save that by counsel for plaintiffs. After the Union Stockyards Company had been in possession of the tracks and doing the switching some time, a written contract, specifying the conditions under which this should be done and its charges therefor, was prepared and signed by it and one of the railway companies, but not the others. Therein, it was not pretended that the railway companies owned the right of way; but, even if it had been so stated, contracting with reference thereto was not inconsistent with the right of way’s being granted for particular purposes. Thereafter, the defendant and the terminal companies by common consent seem to have operated in accordance with the provisions of this writing, save as to charges, but this involved no claim of right or title on the part of the railway companies, nor concession thereof on the part of defendant. The latter had acquired title to the lots on which [671] the tracks were laid, and the railway companies had not parted with the rails laid thereon, even though the purposes for which laid had ceased, and both were interested in the switching of cars to and from the defendant’s yards and the packing houses. The stockyards and terminal companies, and not the railway companies, save the Chicago & Northwestern Railway Company for a period not shown, in storing its ears on the west end and in repairing that portion of the tracks, were in possession of the right of way. Such possession was not in subordination to any claim that plaintiffs may have had. 6. easement: ff®® 5*L?f.oof The burden of proof was- on plaintiffs to establish the alleged oral gift or grant of a permanent easement by clear, definite and unequivocal testimony. Truman v. Truman, 79 Iowa 506, 509; Williamson v. Williamson, 4 Iowa 279, 281. This, as seen, they have failed to do, but, on the contrary, have shown an easement limited to particular purposes which have ceased. There is no proof of, the assertion of any other claim of right or title, nor, that the plaintiffs, or any of them except the Chicago & Northwestern Railway Company, have been in possession since 1889, and the temporary possession of the Chicago & Northwestern Railway Company has not been exclusive, and the duration thereof has not been shown. We need only add that neither the gift nor grant of a permanent right of way nor adverse possession was proved, and therefore the trial court erred in not dismissing the petition. 7. Appeal and error: abstract of record: denial: fullness required : certification of record. II. Appellees challenge the jurisdiction of this court on the ground that evidence was received December 26, 1912, and not preserved or made of record in any manner. They also move that, as “the evidence offered and introduced on the trial below is not before this court and because the same has not been preserved as by law [672] provided,” the decree of the district court be affirmed.' The decree entered recited: “Now at this time, December 26, 1912, it being one of the regular days of the November, 1912, term of court, this cause came on for hearing, the plaintiffs appearing by their counsel Shull, Farnsworth, Sammis & Stilwill, and the defendant, the Sioux City Stockyards Company, appearing by its attorneys, Milchrist & Scott, and thereupon, the plaintiffs and defendant introduced their evidence on the issues joined between the parties, and the court having heard the arguments of counsel and being fully advised in the premises, finds:” 8. Appeal and error : record: certification: when required. Then followed the findings and judgment. The certificates of trial judge and reporter in usual form are attached to the transcript of the evidence, asserting that it contains “all the evidence offered or introduced in said cause by the respective parties upon the trial thereof,” both bearing date September 30,. 1912. This transcript was filed November 13th following. Appellees deny that appellant’s abstract alone, or with appellees’ additional abstract, contains all the material evidence offered or introduced, in that evidence was introduced on December 26, 1912, and such evidence is not set out nor any evidence adduced after September 30, 1912, and they also deny that such evidence was preserved as by law provided. Thereupon, appellant amended its abstract by asserting that, at the close of the evidence on September 7, 1912, the following order was entered of record: “Both parties rest. Testimony closed” — and that thereafter no application was made to set same aside and no additional evidence was offered by either party. In response to this, appellees say that appellant’s amendment is but a denial of appellees’ additional abstract, and repeat in substance the contents of such additional abstract. Rule 32 exacts that: “ Every denial shall point out as specifically as the. case [673] will permit the defects alleged to exist in the abstract. A denial by appellee shall be taken as true unless the appellant sustains his abstract by a certification of the record.” 9. appeal and orda-caeniaic' construction, 10. ^Rosfírancíai certificainconsistent recitals mdecree: construction, The denial of appellees is that the abstract contains the evidence which they assert was received December 26, 1912, and they deny that such evidence- was. preserved as provided by law. The certification, if required, must necessarily be sufficiently specific, and no more so than to cover the denial. The latter did not relate to proceedings prior to December 26, 1912, and therefore an amendment to the abstract, setting out the record prior to that day, was not sustaining the abstract in the particulars denied by appellees. The mere fact that an inference from the record prior to that day might contradict, or tend to contradict, such denial, would not render its certification necessary to obviate taking the denial as true. Otherwise, the advantage of specific denials and certifications specifically covering them would be lost. The only object of certification is to settle the specific dispute raised by a denial; and when this is accomplished by the undisputed record, there is no occasion for certification. The amendment to the appellant’s abstract, then, was not a denial of appellees’ additional abstract, save as it asserted that “ho additional evidence was offered by either party.” Let us ascertain from the record, then, whether all the evition: deuce offered or introduced is contained m the record before us; for, of course, it must have been extended in the transcript certified by the- trial judge and official reporter and made a part of the record. Section 3652, Code Supp., 1913; Richardson v. Fitzgerald, 132 Iowa 253. Appellees do not question that the cause came on for trial September 7, 1912, nor that the evidence contained in the abstract was introduced on that day. Nor is the entry denied of the order reciting that “both parties rest. [674] Testimony closed.” To contradict, or at least modify it, appellees rely somewhat on the recitals of the decree. Such entries usually are prepared by counsel and presented to the judge for signature, and, notwithstanding statements apparently to the contrary, the cause does not come on for hearing at that time, nor are there appearances then or the introduction of evidence. Such recitals always are to be read in the light of what has occurred in the case, — the entire record; and when this is done, it becomes manifest, as it is in this case, that, though the hearing may have occupied several days and arguments previously been submitted and the cause taken under advisement, decrees are prepared as though everything connected with the hearing occurred on the day the decree is entered. This custom may have had its source in that which formerly obtained in entering all judgments as of the first day of the term. Though the decree proceeds as though the case were heard entirely on the day of its date, the record shows conclusively that this happened, in part at least, September 7th previous, and that the testimony then was closed. If the trial occurred as the decree recites, then there could not have been a hearing at the earlier date. That there had been such hearing is not questioned; and the decree, in reciting that “plaintiffs and defendant introduced their evidence on the issues joined between the parties,” must have referred to the transcript of the evidence filed November 12, 1912, presumably for the use of the judge in reaching a decision. This conclusion harmonizes the record by giving effect to all of its recitals, and we are inclined to so construe the decree. The recital concerning the introduction of evidence was not necessary to its validity, nor an essential part of it (Section 3769, Code, 1897; Judge v. Powers, 156 Iowa 251); and, if inconsistent with the certificates of trial judge and reporter, must give way to these, the sole function of which is the certification of the evidence adduced at the trial. [675] 11. appeal and error: transcript: oflisistent recital effect166: [674] But this does not fully meet the denial, which asserts, in substance, that material evidence was offered or introduced [675] December 26, 1912, which they deny was made of record or preserved as by law provided, or included in the abstract. There is room for suspicion that this assertion was inspired by the lang'uage of the decree, rather than any real diminution of the record. If so, it is a perversion of the rules, the design of which is to aid, not obstruct, the presentation of the true record to this court. In any event, the naked assertion of counsel that evidence of which no record was made was offered or introduced on the day decree was entered will not overcome the record showing the hearing to have been had some time before, that the testimony had closed, and the certificates of the trial judge and reporter, even though dated prior to the date of the decree, that the transcript of the evidence contained “all the evidence offered or introduced in said cause by the respective parties on the trial thereof.”- If the evidence were not made of record, how might such a denial be met by a certification of the record ? Of course, a ease might be opened, even after both parties had rested, but this is not usual, and it is not exacting too much of appellee, when this is claimed, that he set up enough of the subsequent proceedings to overcome the presumption obtaining in favor of the record and certificates ordinarily regarded - as conclusive. Otherwise, the certainty of the recognized method of identifying the evidence must give way to the art of interposing frivolous denials; and the record, no matter how conclusively authenticated, be treated as open to contradiction by the. mere denial of counsel. We are not ready to lend our approval to any such practice, but hold, as stated, that appellees ’ denial, standing alone, was not enough to overcome the record as made, and it is disregarded.- — Reversed. Evans, C. J., Weaver, G-aynor and Preston, JJ., concur. Deemer, J., agrees to conclusion of majority.