Am. Steel & Iron Co. v. Taft

• Decision Date: 06 May 1938
• Docket Number: No. 1108.,1108.
• Court: Vermont Supreme Court
• Parties: AMERICAN STEEL & IRON CO. v. TAFT et al.

199 A. 261

AMERICAN STEEL & IRON CO.

v. TAFT et al.

No. 1108.

Supreme Court of Vermont. Windham.

May 6, 1938.

Appeal in Chancery, Windham County; Alfred L. Sherman, Chancellor.

Suit by the American Steel & Iron Company against Charles Taft and others to enjoin interference with the removal of rails, accessories, and ties by defendants through whose property the railroad passed. Decree for plaintiff, and defendants appeal.

Affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Frank E. Barber, E. W. Gibson, Jr., and F. Elliott Barber, Jr., all of Brattleboro, for appellants. Neil D. Clawson and Harold E. Whitney, both of Brattleboro, for appellee.

SHERBURNE, Justice.

The plaintiff has purchased from the state of Vermont, the owner of the West River Railroad, the rails, rail accessories, and ties on the greater part of the length of the railroad, and seeks to enjoin the defendants, separate owners of lands through which the railroad passes, from interfering with the remsval of such rails, accessories, and ties. The bill alleges that some of the defendants have notified the plaintiff that they claim that the right of way and materials upon their lands belong to them, and that they have forbidden the plaintiff from entering upon the railroad right of way to remove the rails and materials; that all of the defendants have erected signs forbidding the removal of any material from the right of way; that some of the defendants have threatened to do violence to the employees, agents, and servants of the plaintiff if they enter their lands to remove such property; that some have placed barriers and obstructions upon the right of way; and that one defendant has removed certain of such rails outside of the right of way. No concerted action upon the part of the defendants is charged. The bill also alleges that the state of Vermont has not abandoned the rights of way or easements which it acquired from the West River Railroad Company, and has never abandoned the rails and other chattels thereof. The defendants jointly and severally demurred to the bill of complaint. In the final decree the demurrer was overruled, the bill adjudged sufficient, and the temporary injunction made permanent; from which the defendants have appealed.

The principal ground of demurrer argued here is that there is no equity in the complaint because the plaintiff has a full, adequate, and complete remedy at law. This necessitates a determination as to whether the property in question is such that the plaintiff has an adequate remedy in replevin or trover.

We agree with the defendants that the tracks, railroad structures, and other railroad equipment do not become a part of the realty and may be removed by the railroad company or its assigns on abandonment of the right of way, or within a reasonable time thereafter. Jones v. Southern R. Co., 5 Cir., 285 F. 19; Northern Central R. Co. v. Canton Co., 30 Md. 347; Wagner v. Cleveland & T. R. Co., 22 Ohio St. 563, 10 Am.Rep. 770; Hatton v. Kansas City, etc., R. Co., 253 Mo. 660, 162 S.W. 227; Talley v. Drumheller, 143 Va. 439, 130 S.E. 385, 388. See, also, Farrar v. Nashville, C. & St. L. Ry., 162 Tenn. 313, 36 S.W.2d 95; St. Louis, K. & S. W. R. Co. v. Nyce, 61 Kan. 394, 59 P. 1040, 48 L.R.A. 241; Wiggins Ferry Co. v. Ohio & Miss. R. Co., 142 U.S. 396, 12 S.Ct. 188, 35 L.Ed. 1055; St. Johnsbury & Lake Champlain R. Co. v. Willard, 61 Vt. 134, 17 A. 38, 21 L.R.A. 528, 15 Am.St.Rep. 886. In this last case the railroad company, instead of exercising its right of condemning the land for its road, entered upon it by the consent of the mortgagor in possession, the mortgage then being overdue, and constructed its road, but never acquired title nor paid for the land damages, nor made any agreement in respect thereto, and after it had operated its road for more than fifteen years without objection, for the first time instituted proceedings to have the land condemned. It was held that the defendant, who had purchased and foreclosed the mortgage against the mortgagor and the railroad, and who, after his decree had become absolute, claimed that it gave him title to the corpus of the railroad itself, was not entitled to the improvements and could not have their value as damages, and that in the circumstances the maxim quicquid plantatur solo, solo cedit, did not apply.

All of the above cases, either directly or by inference, treat lawfully erected railroad superstructures as chattels. In several they are said to be trade fixtures or in the nature of trade fixtures. In Snow v. Smith, 86 Vt. 58, 83 A. 269, 270, we had occasion to define trade fixtures, and cited Wagner v. Cleveland & T. R. Co., supra, to the effect: "That the general principle involved in a determination of such questions is the distinction between the business which is carried on in or upon the premises and the premises themselves. That the former is personal in its nature, and articles that are merely accessary to the business and have been put on the premises for this purpose retain the personal character of the principal, to which they are subservient. But articles which have been annexed to the premises as accessory to the land, without regard to the business there carried on, become subservient to the realty and acquire its character."

The ordinary trade fixture may serve a useful purpose as an appurtenance to the land upon which it is built, but that portion of this railroad located upon the land of any one of these defendants, disconnected from other parts of the road, cannot be operated and will be useless as a railroad, nor can it serve any useful purpose as an appurtenance except for its "junk" value.

Under the allegations of the bill we have no hesitation in holding that as between the parties the rails, etc. sought to be removed, are chattels, and, with regard to the right of removal, we approve the position taken in Talley v. Drumheller, supra, where it is stated: "The defendant was not bound to remove the rails within any specified time. So long as no claim of title to them was made by the plaintiffs, no objection raised to their remaining on the right of way, no notice given to remove them, and no act done by the plaintiffs which would bring home to the defendant notice that the plaintiffs intended to assert ownership over them, the defendant had the right to presume that the status quo of the rails remained unchanged." Reverse the parties and we may have the situation here. It must be recognized that railroad superstructures cannot be removed until the railroad ceases operations as such, and that as a practical matter these superstructures may not...