Minneapolis Western Ry. Co. v. Minneapolis & St. Louis Ry. Co.

Mitchell, J. This is one of a series of cases between the plaintiff, or its grantor, the Minneapolis Mill Company, and the Minneapolis & St. Louis Railway Company, involving the title to several tracts of land in Minneapolis, upon which the railway company, at various dates between 1875 and 1880, constructed and subsequently maintained certain spur tracks, under authority from the Mill Company, then the owner of the land. Minneapolis Mill Co. v. Minneapolis, etc., Ry. Co., 46 Minn. 330, (48 N. W. 1132;) Id., 51 Minn. 304, (53 N.W. 639;) Id. 55 Minn. 371; (57 N. W. 64;) C. C. Washburn Flouring-Mills Co. v. Minneapolis, etc., Ry. Co., 56 Minn. 200; (57 N. W. R. 309.) [131] The answer set np the same defenses as the answer in the case decided in 51 Minn. 304, (53 N. W. 639,) and, in addition thereto, pleaded in bar the judgment of the District Court in that action (since reversed) in its favor; alleging that the rights of the defendants to the land in controversy in that suit, and to the land in controversy in this suit, “were identical, and based on the same rights, facts, and circumstances.” The facts — and all the facts — stipulated and found were (1) That the defendant railway company, by permission and with the consent of the mill company, entered upon said premises, and constructed its railway tracks thereon, in the years 1875 and 1876, and has ever since that time operated and maintained its tracks thereon: (2) That the defendant has never at any time had legal title to the premises; (3) That in 1891 the mill company executed to the plaintiff quit-, claim deeds of the premises; (4) That plaintiff made demand of the defendant for the possession of the premises, which demand was refused. It seems clear to us that the only construction that these findings will admit of is that the defendant entered under a mere parol license. An easement always implies an interest in the land upon which it is imposed, and therefore lies only in grant, while a license carries no such estate, and may be created by parol, and is generally revocable at the will of the licensor. The law is jealous of a claim to an easement, and the party asserting such a claim must prove his right to it clearly. It cannot be established by intendment or presumption. The mill company was confessedly the original owner of the premises, and, it being admitted and found that the defendant has never at any time had the legal title, the finding that the defendant entered by permission and with the consent of the owner cannot be extended, by intendment or presumption, so as to amount to a finding of a grant. Indeed, the admissions, express or implied, of the answer, clearly negative the idea that the defendant entered under a grant. The finding, therefore, is of a naked license, carrying no estate in the land, and revocable at the will of the licensor. Johnson v. Skillman, 29 Minn. 95, (12 N. W. 149;) Wilson v. St. Paul M. & M. Ry. [132] Co., 41 Minn. 56, (42 N. W. 600;) Minneapolis Mill Co. v. Minneapolis, etc., Ry. Co., 51 Minn. 304, (53 N. W. 639.) This would seem to be entirely decisive of the case; but defendant claims that, because plaintiff purchased after these tracks had been constructed, therefore it took the premises subject to the incumbrance of an easement in defendant to permanently maintain the tracks. The mere statement of the proposition carries with it its own refutation; for, plainly stated, it is that a conveyance of the premises by the licensor to a third party converts a mere license (which creates no estate in the land) into an easement, which is an interest in the land, and lies only in grant. We do not see why, on this line of reasoning, the same result would not have followed had defendant been a mere intruder or trespasser, for counsel’s argument is that the purchaser must be deemed to have taken the land subject to the visible incumbrance then on it. So far from such being the case, the law is that a revocable license is revoked by a conveyance of the land by the licensor. Johnson v. Skillman, supra; Wilson v. St. Paul M. & M. Ry. Co., supra. Counsel’s argument is all based on a false premise, which begs the whole question. He assumes that when a railway company enters and builds its track on land under a license from the owner, it acquires a permanent easement in the land by virtue of the license thus acted on, and that thereafter the only right of the landowner is his claim for compensation for the taking of the land for railway purposes. In some states, — notably, Wisconsin and Illinois, — either by statute or by judicial decision, founded on supposed considerations of public policy, this is substantially the law; all actions by the landowner, whatever their form, being in effect actions to recover compensation for the permanent appropriation of land already taken. If such were the law in this state, there would be at least some plausibility to defendant’s contention. But we have repeatedly held that the law is otherwise. Watson v. Chicago M. & St. P. Ry. Co., 46 Minn. 321, (48 N. W. 1129;) Lamm v. Chicago St. P. M. & O. Ry. Co., 45 Minn. 71, (47 N. W. 455;) Minneapolis Mill Co. v. Minneapolis, etc., Ry. Co., 51 Minn. 304, (53 N. W. 639.) Under our statute the landowner may revoke his license, and bring ejectment, which the railway company may, if it so elects, turn in [133] to a condemnation proceeding; and it is only then, and through that proceeding, that the railroad company acquires any easement in the land, or the landowner any right to compensation for taking it for railway purposes. The defendant could not acquire title by prescription, because its possession was not adverse. Judgment affirmed. Buck, J., absent, sick, toon no part. (Opinion published 59 N. W. 9S3.)