Kansas & Colorado Pacific Railway Co. v. Burns

The opinion of the court was delivered by Greene, J. : This was an action in ejectment from certain lots in the city of Hutchinson. The plaintiff relied for a recovery upon a condemnation proceeding in 1886 by the Wichita & Colorado Railway Company, in which the lots in question, and other lands, were condemned for a right of way, depot grounds, and terminal facilities. Plaintiff succeeded to all the rights of the Wichita & Colorado Railway Company. The defendants claimed title and right of possession under a tax deed, regular on its face, and the erection of lasting and valuable improvements. Defendants also contended that the company was npt actually using the lots for railroad purposes, and that their occu [628] pancy did not interfere with the company’s use of such of its property as was in actual use by it. It was admitted that the right of way of plaintiff through the city of Hutchinson had been duly and regularly assessed by the board of railroad assessors of the state of Kansas for the year 1886, and for each and every year thereafter, and that the taxes so assessed for 1886, and for each subsequent year, had been paid by the company. It was also admitted that the condemnation proceeding by the Wichita & Colorado Railway Company was regular, and that the plaintiff had regularly succeeded to all the rights of such company. In view of these admissions the sale made by the county in 1896 for the taxes of 1895 was unauthorized and conveyed no title to the purchaser. Possession under a tax deed so acquired cannot be made a defense to an action in ejectment. It appears from the record that the court in rendering judgment adopted defendant’s theory that they might remain in the actual possession of the lots in question, or any portion thereof, so long as they did not actually interfere with the operation of the railroad by the company. This is apparent from the judgment, in which we find the following recital: “The court having heard all the evidence in the case, and being fully advised therein, doth find that there is involved in this controversy a sum over and above the sum of $100 (one hundred dollars). The court also finds that the occupancy of the defendants of the real estate in question does not interfere with the possession of the plaintiff. The court also finds for the defendants.” At the time the condemnation proceeding took place, one Miller was the owner of the fee in this property, and, so far as the record shows, he is still the owner. [629] The defendants do not claim through him ; indeed, except for their tax deed, they had no claim of title except that which arises by implication of law from possession. As between a railroad company and one not the owner of the fee, and not claiming under such fee-owner, a railroad company is entitled to the exclusive possession of all property condemned to its use for railroad purposes. The right acquired by a railroad company by condemnation proceeding for right of way, depot grounds and terminal facilities dominates every right of possession, except as to the owner of the fee, and he may use only that portion which is not in immediate use by the company, and not necessary to the safe and convenient use of that which is in actual service. (Dillon v. Railroad Co., 67 Kan. 687, 74 Pac. 251, and cases cited; Railway Co. v. Spaulding, 69 id. 431, 77 Pac. 106, and cases cited.) The whole estate and right of possession were in the fee-owner and the railroad company. The defendants claimed under neither ; therefore, their possession was wrongful. For the reasons suggested the judgment of the court below is reversed, and the cause remanded. Johnston, C. J., William R. Smith, Cunningham, Bukch, Mason, JJ., concurring.