Barnes v. Southern Pac. Co.

HUNT, Circuit Judge (after stating the facts as abovej. Plaintiffs in error concede that there cannot be a voluntary alienation of a railroad right of way granted by an act of Congress, except for certain limited purposes, which are not pertinent to the present case; nor do they dispute the point that adverse possession does not run against a right of way so granted. But they assert that the ownership of the right of way is not necessarily absolute and exclusive, and the substance of their argument is that the District Court failed to give proper effect to the averments of their answer, setting up that the plain [483] tiff never received a grant of the right of way as alleged, and is not the successor in interest of the grantee named in the act of Congress, and also failed to give due weight to their averments putting in issue the ownership of defendant in error, or its right to possession of any portion of the demanded premises. Brief reference to the decisions shows that the character of the grant is one made upon an implied condition, which becomes material in the present case. In Northern Pacific Railway v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044, it was held that the Northern Pacific grant there under examination was in effect a “limited fee,” made on an implied condition of reverter in the event the company ceased to use or retain the land for the purposes for which it was granted. The view taken was that, title of such a character having been granted for the special purpose of use of the land for railroad purposes, to have and to hold the same so long as it was used for railroad right of way, the railroad company could not alienate any part of its roadway, so as to interfere with the full exercise of the franchise granted. The Townsend Case concerned the validity of an asserted title by adverse possession; the present litigation has to do with an asserted abandonment — a distinction of substance, for in the case of adverse possession, to give effect to a state statute of limitations would in effect confer a permanent right to possession upon an individual for his private use, and thus there could be by indirection alienation by a railroad of part of its right of way, the whole of which is presumed to be needed for railroad purposes. In the case of abandonment, however, a claimant bases his right, not upon adverse rights, nor upon a desire on the part of the railroad company to profit by transfer of its property, but upon the voluntary acts of the railroad company, which, we think, by intention and nonuser may deliberately show that use of the whole tract granted is not necessary, and that its grant from the government has expired. New Mexico v. United States Trust Co., 172 U. S. 171, 19 Sup. Ct. 128, 43 L. Ed. 407, quoting from Smith v. Hall, 103 Iowa, 95, 72 N. W. 427; Northern Pacific v. Spokane, 64 Fed. 506, 12 C. C. A. 246. In Holland Co. v. Northern Pacific Co., 214 Fed. 920, 131 C. C. A. 216, we had occasion to consider the grant to the Northern Pacific, and rearded it as of a qualified or limited fee, made on implied condition of reverter in the event the company ceased to use or retain the land for the purpose for which it was granted. Abandonment was recognized as possible, the question being regarded as one of intent, capable of being established by the acts of the company. Railroad Co. v. Baldwin, 103 U. S. 429, 26 L. Ed. 578; Denver & R. G. v. Mills, 222 Fed. 481, 138 C. C. A. 77; Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208, 1 L. R. A. (N. S.) 806, 114 Am. St. Rep. 509, 6 Ann. Cas. 239. The rule laid down in the Townsend Case, supra, was followed in Northern Pacific v. Ely, 197 U. S. 1, 25 Sup. Ct. 302, 49 L. Ed. 639. The doctrine established, as applied to the present case, is that, although title to the land within the right of way could not be acquired against the railroad company, grantee, by limitation, still, as the implied condition upon which the grant was made, user and reten [484] tion for legitimate railroad purposes must exist, in order that the limited fee may he held, it should follow that there can be an abandonment of right of way. What specific acts of the railroad com'pany may constitute abandonment need not be discussed, further than to say the question generally is largely one of intention, to be established by acts which clearly indicate nonuser and a purpose on the part of the railroad company to give up the use of the right of way or part thereof. The allegation in the complaint that plaintiff below, Southern Pacific Company, “operates” the railroad described, with a defined right of way of 200 feet in width, and that the parcel in question is in possession of defendants, though admitted in the answer of defendants, should be considered with the denial that plaintiff owns or is entitled to 'possession of any right of way, or that plaintiff acquired said right of way by the act of Congress cited in the complaint, or is entitled to the exclusive or any possession of the whole or any part of the described land, and with the denial that plaintiff is the successor of the Southern Pacific Railroad of California. Casci v. Ozalli, 158 Cal. 282, 110 Pac. 932. Under the pleadings, to recover judgment, plaintiff would have to introduce evidence. It was error, therefore, to grant judgment on the pleadings. The judgment is reversed.