Atchison & Nebraska Railroad v. Manley

The opinion of the court was delivered by Johnston, J.: The evidence and findings of the court leave the question of the location and boundaries of lot 1 in block 111 in great doubt. The railroad company claims that the plat and dedication are so indefinite and incomplete as to the blocks, lots and street along the river-front as to be invalid. The town-site was platted in 1855, but the certificate of dedication explicitly declared that the width of the levee street was not fully settled upon, and that the blocks and lots on the river and levee were not fully measured and marked out. The lot in question was located on the levee, and although the exterior lines of the lot and block were shown on the plat filed, no figures showing the dimensions or extent of these were given. The dimensions of the other blocks and lots and the width of the streets were indicated upon the plat filed' by figures placed thereon, but as to the levee and the lots fronting thereon the town company reserved the right to change and fix their width, boundaries and extent as it might thereafter determine. No alteration was ever made in the plat,'nor was any amended plat filed. A distribution of lots was made among the shareholders of the town company in 1859, and the lot in controversy was apportioned and conveyed to a [585] stockholder named Fairchild, through whom the defendant in error claims. The railroad company claims under a conveyance from the town company executed in 1869, purporting to convey a strip of land- along the west bank of the river 100 feet wide, and also under an ordinance of the city of Atchison, enacted in 1869, granting the company a right-of-way over the levee or street, which it asserts was a public highway established in 1865. [586] Railroad duly using street; ejectment fails. [585] We think the judgment is not supported by the evidence and the findings. Without determining the effect of the original dedication, it i§ clear that ejectment will not lie. It is found upon sufficient testimony that a public highway was established along the west side of'the river in 1865. This highway was laid upon what is called the “levee street,” and covered the ground now occupied by the railroad company. And it is the possession of a part of this that Manley now seeks to recover. It was established as a state road under the authority of an act of the legislature which provided that it should not be less than 66 feet in width. (Laws of 1861, ch. 70.) The road record introduced in evidence showed the report that the commissioners appointed under this act made to the county commissioners on April 15, 1865, the approval thereof, and the establishment thereon of a state road along the west bank of the Missouri river, from Atchison street in the city of Atchison to the north limits of the city, and so on to the Doniphan county line. The road thus established was used as a highway by the public from that time on, and was so used when the railroad track was constructed thereon. A precipitous bluff about 100 feet high, extended to within about 56 feet of the river at the point in question, and in some places much closer, so that the highway was made with great difficulty by excavating from the bluff and filling into the river, and in places it was so difficult to make a road that it was only improved and widened to the extent of about eight or nine feet, until the railroad was built. The railroad was surveyed. in 1868, and constructed in 1869 and 1870 along this narrow roadway, and it has been occupied with several tracks [586] and used by the company ever since. The testimony introduced by Manley shows that the distance from the center of the main track to the river is 38 feet, and that only about 15 feet west of this track was in use by the railroad company, and that opposite to the lot in controversy the railroad company only occupied 55J feet, which was all the territory lying between the bluff and the river. Thus it appears that the entire space occupied by the company at this point is less than the width of the highway which was established, and over which the company was authorized to build. Having procured from the city the right to build and maintain its road, it is rightfully in possession if the highway was legally established. No objection is made to the legality of this highway, unless it is found in the suggestion made in the 7th finding of fact, where the court states that “ It does not appear that said town company was notified or took any part in the proceedings locating said road.” But no notice to the town company was essential to the laying-out of the highway. The lots had been distributed and conveyed in 1859, six years prior to the time that the road was established, and it is not stated or claimed that notice was not given to Fairchild or other lot-owners, nor that any of the statutory requirements were not complied with. From the facts disclosed in the record, it must be held that a street 66 feet in width was legally established upon the levee. While the fee of the street was in the county, the control of the same was in the city, and it was within the power of the city to grant to the railroad company the right to construct and operate its road over this levee or street. (Garside v. A. & N. Rld. Co., 10 Kas. 552.) There is no claim that the road was not constructed in a legal and proper manner, as the ordinance of the city provided; but this being an ejectment, the right to recover damages for such failure is not involved. According to the testimony and findings, the railroad is laid uPon an established street within the city, in pursuance of ample power conferred upon the company by the city to occupy and use the street for this public purpose, and as this occupancy and use have never [587] been abandoned, it follows that Manley cannot maintain an action to dispossess or eject the company from the street so occupied; and hence we need not examine and decide the other questions presented in the case. The judgment of the district court will be reversed, and the cause remanded, with instructions to render judgment in favor of the plaintiffs in error. All the Justices concurring.