Faulk v. Missouri River & N.W. Ry. Co.
| Decision Date | 30 June 1911 |
| Citation | 132 N.W. 233,28 S.D. 1 |
| Parties | FAULK v. MISSOURI RIVER & N.W. RY. CO. et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County; Levi McGee, Judge.
Action by Samuel Faulk against the Missouri River & Northwestern Railway Company and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Affirmed.
C. W Brown, C. L. Wood, Bailey & Voorhees, and McLaughlin & Ogden for appellants.
Schrader & Lewis, for respondent.
This is an appeal by the defendants from a judgment entered in favor of the plaintiff and from the order denying a new trial.
It is alleged in the plaintiff's complaint that ever since the 2d day of September, 1890, he has been and still is the owner of a 40-acre tract of land situated in Pennington county, in this state; that the said defendant railway company was duly organized and is now existing under and by virtue of the laws of the state of South Dakota, and is the owner of and maintains and operates that certain line of railroad running from Rapid City, in said Pennington county, in a general southwesterly direction along the valley of Rapid creek, to Mystic, in said county, a distance of about 33 miles, and over and across said land; that as such corporation the said railway company is vested with the right to take or damage the said land of the plaintiff, together with the appurtenances thereto, and to construct and maintain its railroad thereon, and to operate the same under the laws of this state, upon first ascertaining and paying just compensation to plaintiff therefor, before possession thereof is taken or any injury or damage done; and that, to enable defendant corporation to construct, operate, and maintain said railroad over the land of the plaintiff, it is necessary that the railway company and receiver acquire a right of way therefor over the premises of plaintiff; that the defendant Charles O. Bailey is the receiver of the said railway company, duly appointed by the circuit court of Pennington county, and is now in possession as such receiver of all the property of said railway company.
Plaintiff further alleges that the said defendant the Cleveland Trust Company is a corporation duly organized and existing under and by virtue of the laws of the state of Ohio, and as such corporation is a trustee for all the bondholders of the several bonds issued by said railway company, aggregating about $1,000,000, secured by a pretended mortgage upon all of the property of the said railway company for the purpose of constructing and equipping the said railroad; that the said trust company claims a lien, interest, or estate in said railway company and its property as security for the bonds mentioned, but plaintiff alleges that whatever interest, lien, or estate said trust company may have the same is subject to and inferior to the claim of plaintiff herein; that during the years 1891-92, the said railway company and its predecessors in interest located and constructed its said railroad from Rapid City to Mystic, over and across the said land of plaintiff, and have occupied and still occupy a strip of land 100 feet wide and 1,380 feet in length, cutting said land in two and destroying a large amount of meadow and plowland, and also destroying and filling up a ditch of plaintiff's; that ever since the construction of said roadbed over the said premises of plaintiff the said railway company and its predecessors in interest, and its said receiver, have operated said railroad over and across said premises and occupied the said strip of land therefor, without right and without payment therefor, and have never acquired any title thereto, and neglect and delay so to do; and, though often demanded to do so, they have refused to pay this plaintiff any damages therefor, and have refused to commence and prosecute condemnation proceedings, whereby this plaintiff has been damaged in the sum of $500, no part of which has been paid or deposited in the office of the clerk of the court, or elsewhere. Wherefore plaintiff prays for an order fixing the time and place for hearing of this complaint and requiring the said railway company and its receiver to commence and prosecute with all speed in this court, by a day to be named, before a jury, legal proceedings under the law of eminent domain, to ascertain the damages of the plaintiff for the taking and injury of the premises of the plaintiff as aforesaid.
Plaintiff further prays that upon the final hearing of this action judgment may be rendered in favor of the plaintiff and against the defendant railway company and its receiver for the said sum of $500, and that the judgment of this plaintiff may be declared to be a first lien on said railroad and its appurtenances, prior and superior to the claims of said defendants, and each of them.
To this complaint the trust company separately answered, and denied all the allegations of the complaint, except such as were thereinafter specifically admitted; admits that the railway company is a corporation organized under the laws of the state of South Dakota, and the owner of the railroad described in plaintiff's complaint; that C. O. Bailey is receiver of said railroad, and as such is in possession thereof and maintains and operates the same; and that said railway company is vested with the right of eminent domain. The trust company then proceeds to set out its incorporation under the laws of the state of Ohio, and as such is trustee for the bondholders of said railroad, aggregating about $1,000,000, which bonds are secured on all the property of the said railway company, and which were issued for the purpose of constructing and equipping the same; asserts that the defendant has a lien upon, interest and estate in, all of said property as security for the bonds mentioned; that during the years 1891-92 the predecessor of said railway company located and constructed said railroad from Rapid City to, upon, and across the land described in the complaint, and for a number of years thereafter occupied the strip of land for a right of way, as described in the complaint.
The defendant then pleads the six and ten years statutes of limitations as a defense to the action. It is then alleged in the answer that the defendant corporation was chartered as such on the 15th day of April, 1904, and has since been such corporation; that the Dakota, Wyoming & Missouri River Railway Company was, prior to the year 1890, duly organized and existing as a railroad corporation under the laws of the state of South Dakota, and continued to be such corporation for many years thereafter; that said railroad was graded and constructed over and across the land described in the complaint, with the consent and acquiescence of the plaintiff, in the year 1891, and more than 16 years prior to the commencement of this action, and that said railroad was for many years thereafter maintained and operated by said Dakota, Wyoming & Missouri River Railway Company; that thereafter, and before this action was commenced, the defendant railway company succeeded to and became the owner of all the right, title, and interest formerly owned and possessed by the former railway company, and that said defendant railway company relied upon said plaintiff's long-continued consent to, and acquiescence in, the claim of said former company to have a valid right of way over and across said land, and after its purchase of said railroad and appurtenances this defendant expended over $700,000 to complete and equip the same, and but for such acquiescence and reliance would never have purchased the said railroad or made the said expenditure; that the plaintiff slept upon his rights, if he has any, more than 16 years before this action and never, until this action, brought any suit or other proceedings to obtain damages for said right of way used and operated as aforesaid, or for other relief; and the plaintiff's said claim is a stale demand without standing in a court of law of equity; and that by reason of the premises the plaintiff is barred by laches, and by the statute of limitations, and is also estopped to claim or assert any estate, right, title, or interest whatsoever in or to, or lien upon, said land aforesaid adverse to the defendants, or to assert any claim for damages against them or either of them.
It is then alleged in the answer that the plaintiff claims some estate or interest in and to said parcel of land, but that he has not any estate, right, title, or interest whatsoever in and to the same, or any part thereof, and demands judgment that its title to the said premises be quieted.
The defendant Missouri River & Northwestern Railway Company and Charles O. Bailey also filed separate answers, and pleaded substantially the defenses set up in the answer of the trust company. To these answers the plaintiff replied, denying many of the allegations therein contained, and denied that the said claim of the defendant is prior and superior to the claim of plaintiff.
This action was commenced in July, 1908, and on the 9th day of March, 1909, came on for trial before the court, and again came on for trial before the court and a jury on the 4th day of November, 1909. The jury returned a verdict for $485, and the court made its findings and conclusions of law, in which the court finds in substance, the facts as alleged in the plaintiff's complaint, and, among others, that the plaintiff has a first lien upon the said railroad as described in the complaint, together with its right of way appurtenances, and franchises, prior and superior to the claims and demands of the defendants, and each of them, for the said sum of $485, found by the jury; that the defendants the Cleveland...
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