FC Ayres Mercantile Co. v. Union Pac. R. Co.

• Decision Date: 22 November 1926
• Docket Number: No. 7274.,7274.
• Parties: F. C. AYRES MERCANTILE CO. v. UNION PAC. R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

16 F.2d 395 (1926)

F. C. AYRES MERCANTILE CO. v. UNION PAC. R. CO. et al.

No. 7274.

Circuit Court of Appeals, Eighth Circuit,

November 22, 1926.

James Grafton Rogers, of Denver, Colo. (William V. Hodges, D. Edgar Wilson, and James L. Goree, all of Denver, Colo., on the brief), for plaintiff in error.

C. C. Dorsey, of Denver, Colo. (Edward G. Knowles, of Denver, Colo., on the brief), for defendant in error Union Pac. R. Co.

Frank E. Gove, of Denver, Colo. (Kenaz Huffman, of Denver, Colo., on the brief), for defendant in error Armour & Co.

Lawrence Lewis, of Denver, Colo. (Donald C. McCreery, of Greeley, Colo., and Bryan G. Johnson, of Denver, Colo., on the brief), for defendants in error Jamison and others.

Before KENYON, Circuit Judge, and SCOTT and SANBORN, District Judges.

KENYON, Circuit Judge.

This suit is one in ejectment brought originally by plaintiff in error (hereinafter designated as plaintiff) against the Union Pacific Railroad Company, one of the defendants in error, to recover possession of a certain strip of land across a part of the northwesterly one-half of lots 1 to 6, inclusive, block 23, East Denver, Colo., occupied by two spur tracks of said railroad company serving certain industries in said block 23 and other adjacent blocks. Upon motion of defendants, plaintiff was required by the court to make parties Armour & Co. and the other defendants in error (hereinafter referred to as the Arbuckle heirs), on the theory that they had some right in the property. All defendants in error here will be designated as defendants. The defendants answering plaintiff's complaint asserted that the Union Pacific Railroad Company had the right to maintain its tracks upon plaintiff's property; that the action is barred by the statute of limitations; that an easement by prescription exists as to all defendants to have the use of the strip of land occupied by the railroad tracks. All defendants claim certain estoppels.

Defendant Union Pacific Railroad Company asserts that the tracks on the strip of land in question had been, and were at the time the action was brought, used for public purposes. The trial court instructed a verdict for all of the defendants, and plaintiff brings the case here.

Defendants filed cross-petitions raising equitable issues. Plaintiff continued to assert throughout the trial that the case was one at law. Whether or not defendants so considered it up to the time of filing motion to instruct the jury to return a verdict in their favor is not clear from the record, but in any event they treated it as a case at law at the time of filing such motions. The action as originally brought was one based on plaintiff's title to recover possession of specific real property. It was clearly an action at law. Whitehead v. Shattuck, 138 U. S. 146, 11 S. Ct. 276, 34 L. Ed. 873; Denison v. Keck et al. (C. C. A.) 13 F.(2d) 384.

Defendants had the right under section 274b of the Judicial Code (Comp. St. § 1251b), to file cross-complaints seeking equitable relief against the plaintiff. In this situation the equitable issues should have been first disposed of. The Supreme Court of the United States has pointed out the proper procedure in Liberty Oil Company v. Condon National Bank et al., 260 U. S. 235, 242, 43 S. Ct. 118, 121 (67 L. Ed. 232), saying: "Where an equitable defense is interposed to a suit at law, the equitable issue raised should first be disposed of as in a court of equity, and then, if an issue at law remains, it is triable to a jury." See, also, Union Pac. R. Co. v. Syas, 246 F. 561, 158 C. C. A. 531; Houston v. Trower (C. C. A.) 297 F. 558; Horbach v. Coyle et al. (C. C. A.) 2 F.(2d) 702, 707.

It appears from the record that, because the jury was about to be discharged for the term, it would expedite business to have the legal questions first determined. Defendants waived the right to have the equitable issues first disposed of. Plaintiff does not seem to have objected to this procedure, and a jury was impaneled. During the trial the court submitted one question of fact to the jury evidently for an advisory opinion. After that the court filed an opinion holding for defendants, and indicating there was no further need for a jury and stated it was the court's impression that it "should make specific findings of fact and conclusions of law agreeable to the views herein expressed and enter a decree thereon." Apparently at this time the court regarded the case as in equity. After the court had indicated its views, defendants moved for an instructed verdict, and subsequently the jury, which had been excused for a while, was recalled, and the court directed a verdict for defendants. After this defendants dismissed their equitable cross-petitions and counterclaims.

It is evident the procedure was irregular, and resulted in a legal farrago. Procedure within the rules of law must rest somewhat in the discretion of a trial judge, and if the procedure here, while not meeting with our approval, did in fact work no prejudice to plaintiff, it is not ground for reversal. The court came to the conclusion that the evidence was not sufficient to warrant submitting the questions of fact to a jury for determination, and upon motion of defendants directed a verdict for all defendants. The guaranty of the Seventh Amendment to the Constitution as to the right of a trial by jury applies to cases in which there are issues of fact to be determined. The court's decision was based on a legal proposition, and, if such action was correct, plaintiff has no ground for complaint. Ex parte Peterson, 253 U. S. 300, 40 S. Ct. 543, 64 L. Ed. 919; Miller v. United States, 11 Wall. 268, 20 L. Ed. 135. We turn, therefore, to the question of whether the court erred in instructing a verdict for defendants.

The court indicated that it instructed the verdict on the ground that the use of the tracks by the Union Pacific Railroad Company was a public use. The court expressly said it did not find that defendants, Armour & Co. and the Arbuckle heirs, were entitled to a judgment establishing their claimed easements, stating: "All a directed verdict means is that the plaintiff has no cause of action on the peculiar facts set up in the complaint." It was evident, therefore, that the court instructed a verdict for all of the defendants on the theory that the use of the tracks by the Union Pacific Railroad Company was a public use, and that therefore ejectment would not lie. If the verdict was properly directed, no matter on what ground, plaintiff has no reason for complaint. In any discussion of this case, it must be kept in mind that this is an action in ejectment, and plaintiff must prevail on the strength of its own title. 19 C. J. 1039.

Public Use. — Was there such public use shown by this record of the tracks of defendant Union Pacific Railroad Company upon plaintiff's property as to bar plaintiff's action for ejectment? Of course, the burden of establishing that defense was upon defendant. The evidence shows that the easterly track, designated as the Armour track, has been used as a track for the switching of cars to Armour & Co., and what might be termed the branch track has been used in connection with what is known as the Colorado Warehouse. Both tracks were used as a part of one trackage system. If there was public use of the easterly track, there was also such use of the westerly track as a part of said system. At the time this action was brought these tracks had been used without interruption for some 38 years. After 1890 they were used, in addition to serving the industries in block 23, as a means of access to a system of industrial trackage to the north, known as the Coon Hill tracks. There seems to have been no arrangement made in regard to this — no objection or remonstrance from any of the owners of the land in the westerly one-half of block 23, and such use has continued for a period of 30 years prior to the commencement of this suit. This use was made of these tracks for 19 years before plaintiff acquired title. The evidence shows without dispute that it was a constant, daily use.

In 1892 the rear one-half of lots 1 to 6 was released from a trust deed and conveyed to Simeon B. Armour, through whom the title finally became vested in defendant, Armour & Co. The Arbuckle heirs acquired their interests in 1897. The trust deed covering the front one-half of lots 1 to 6 was foreclosed, and the property conveyed in 1909 to plaintiff. These tracks were then upon the property, and plaintiff must have known they were being used as a part of the switching system to give access to the industries reached by the Coon Hill trackage. None of the owners of the property ever objected to this additional use of the tracks. Plaintiff took the property subject to whatever rights the railroad had to maintain the tracks upon the land purchased. The tracks were notice to it of the right by which they were maintained. Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 S. Ct. 239, 35 L. Ed. 1063; Roberts v. Northern Pacific Railroad Co., 158 U. S. 1, 15 S. Ct. 756, 39 L. Ed. 873; Kindred v. Union Pacific Railroad Co., 225 U. S. 582, 32 S. Ct. 780, 56 L. Ed. 1216; Henderson v. Wanamaker, 79 F. 736, 25 C. C. A. 181.

That these tracks were devoted to a public use, at least after 1890, is fully established by the evidence. Hairston v. Danville & Western Railway Co., 208 U. S. 598, 28 S. Ct. 331, 52 L. Ed. 637, 13 Ann. Cas. 1008; Union Lime Co. v. Chicago & Northwestern Ry. Co., 233 U. S. 211, 34 S. Ct. 522, 58 L. Ed. 924; Chicago & N. W. Ry. Co. v. Ochs, 249 U. S. 416, 39 S. Ct. 343, 63 L. Ed. 679; Milheim et al. v. Moffat Tunnel Improvement District et al., 262 U. S. 710, 43 S. Ct. 694, 67 L. Ed. 1194; Western & Atlantic R. R. v. Georgia Public Service Commission et al., 267 U. S. 493, 45 S. Ct. 409, 69 L. Ed. 753. This court in McPhee & McGinnity Co. v. Union Pac. R. Co. et al., 158 F. 5, 9, 19, 87 C. C. A. 619, 623, 633, said:

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