Beck v. Lane County

• Decision Date: 31 January 1933
• Parties: BECK et al. v. LANE COUNTY.
• Court: Oregon Supreme Court

18 P.2d 594

141 Or. 580

BECK et al. v. LANE COUNTY.

Supreme Court of Oregon

January 31, 1933

Department 2.

Appeal from Circuit Court, Benton County; James T. Brand, Judge.

Action by C. C. Beck and another against Lane County. From a judgment of involuntary nonsuit and dismissal, the plaintiffs appeal.

Reversed and the cause remanded for a new trial.

This is an action for damages for blocking and destroying a roadway underneath the railroad used for ingress to and egress from plaintiffs' premises. The cause was tried before the court and a jury. Judgment of involuntary nonsuit was granted, and the case dismissed. Plaintiffs appeal.

The Siuslaw river is a navigable tidewater fishing stream and the main artery of commerce and traffic for the people residing in its basin. Plaintiffs are the owners of about 40 acres of land on the north side of the river. About 1913 there was a county road across the Beck land where the railroad is now located. The railroad company at that time purchased the right of way across the Beck land, which is described in plaintiffs' complaint, from one Charles B. Morgan, now deceased, plaintiffs' predecessor in interest in the land, and Lane county vacated the county road. The highway is located very near the river, and when the railroad was completed it obliterated the old county road, leaving nearly all of the Beck land with no means of ingress or egress except a road under the railroad to the river.

The deed to the railroad company from Charles B. Morgan Beck's predecessor, contained the following clause "Said company in consideration of the premises covenants and agrees to build and maintain a suitable wagon road crossing at grade, at such point as said grantor shall show to be necessary for access to and use of his lands, provided the said crossing shall be deemed practicable by the Chief Engineer of the company, and provided the location of said crossing shall be requested prior to the grading of said railroad on said lands."

The testimony tends to show substantially as follows: The railroad company, in constructing its road where it crosses the creek, left a passageway under its tracks fifteen or sixteen feet wide with ample height for all road purposes, and since that time has refrained from obstructing that passageway; and when the trestle was reconstructed made the same provisions for the roadway under the track. When anything happened, by reason of the work of the railroad company on its roadbed, to interfere with the roadway, the railroad company has put the roadway under the tracks back in condition. Soon after constructing the trestle the railroad company fenced its road in such a manner as to leave a way upon the land under the track to the river. In placing this fence, a tenant on the land, under directions from the owner, requested that it be built about six feet further back than first proposed, to give more room, and the railroad company complied with the request. The railroad was built across the land on a high fill, completely cutting it off from the river. Plaintiffs' bottom land was surrounded by hills, except where it fronted on the Siuslaw river, and there was no road or means of ingress or egress except to the Siuslaw river. The land of the plaintiffs has been occupied nearly all the time since the railroad was built. The tenants and owners have used the roadway under the track for all purposes necessary to the occupancy of the land since that time. Docks were put in the river and used for the landing of boats for the delivery of freight to the place. The mail boat stopped there for many years for the purpose of delivering mail at the dock, and the school boats stopped daily for years for the purpose of transporting children to school. For nine years there was no outlet of any kind from the land except the roadway under the tracks.

In 1922 the county road from Cushman to Mapleton was constructed through the hills passing back of the bottom land. That road was continued until 1930, when it was destroyed in constructing the new county road, completely blocking all exit. The new highway was constructed, commencing about 1930, known as the Siuslaw highway, by the county with the assistance of the state and United States government. It was constructed on the railroad right of way between the railroad and the river, pursuant to a right given from the railroad company. It was built in such a manner that it blocked the plaintiffs' roadway under the railroad tracks to the river. The new highway is four or five feet lower than the railroad, and runs parallel with and close to it. The railroad is ten or twelve feet above the surface of plaintiffs' land all the way across it. The only exit from plaintiffs' land, except by means of the undergrade crossing, is by climbing the steep railroad grade to the top, and then down to the new road, and from the new road down a steep rubble incline of about 15 feet to the bank of the Siuslaw river. The right of way was fenced in such a manner as to give plaintiffs the means of ingress and egress from his land to the river, and, on the river side, so as to give ample room for landing purposes and the use of plaintiffs' docks. The docks and the landing place have been practically destroyed by the new highway by filling up the roadway under the railroad track and destroying same, and all access to the dock and river from plaintiffs' premises being blocked by the rubble wall and the destruction of the way.

Plaintiffs have about seven acres of bottom land, a house, and some orchard. There is also some timber on the hills surrounding the bottom land, which must be delivered, when cut, across this land to the Siuslaw river.

Plaintiffs and their predecessors and their tenants have occupied the premises almost constantly for about seventeen years. Plaintiffs claim the land is also valuable for its water connections and fishing rights, as well as for tillage, and asks damages in the sum of $2,500.

Defendant has denied from the beginning that plaintiffs had any easement or right of way under the railroad or any rights whatever, and has refused to continue the easement, settle for it, or condemn it.

Calkins & Calkins, of Eugene, for appellants.

Eugene V. Slattery, Deputy Dist. Atty., of Eugene (Alta King, Dist. Atty., of Eugene, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

At the close of plaintiffs' case the trial court granted an involuntary nonsuit on motion of defendant's counsel, based upon the reasons, first, that the complaint fails to state a cause of action, as it fails to describe the easement; second, that it shows the easement was by and with the consent of the Willamette Pacific Railroad Company, the railroad which received the conveyance from Charles B. Morgan; and that the evidence does not support the complaint.

The complaint describes the plaintiffs' land and also describes the right of way, which is a branch line, extending from Eugene to Marshfield, of the Southern Pacific Company, the present owner, subject to the rights of Lane county and the plaintiffs' right of easement.

The complaint, referring to the easement, in paragraph V alleges: "That appurtenant to the land of these plaintiffs, and belonging to the said plaintiffs, as an appurtenance to the said land, is an easement which has been owned and enjoyed by the plaintiffs and their predecessors in ownership of said land for more than seventeen years last past, and since the construction of said railroad, which easement consists of an underground crossing across the right of way of said railroad company, and beneath its tracks to the Siuslaw River, connecting plaintiffs' said land with, and furnishing an outlet to, the Siuslaw River, and to plaintiffs' docks and landing facilities on the said Siuslaw River, large enough to furnish the plaintiffs and their predecessors in ownership with easy transportation from said land to the said Siuslaw River for the delivery of logs, and for loaded wagons, trucks, automobiles, and all ordinary modes of conveyance, which said easement the plaintiffs and their predecessors in ownership of said land have been enjoying and in possession of from the year 1913, when said railroad was constructed, up to about the first day of January, 1930, when said easement was appropriated by the defendant and the State Highway Commission of the State of Oregon, all of which was at the time of said appropriation, and is, well known to the plaintiffs herein."

Paragraph VI of the complaint is as follows: "That said easement was pursuant to agreement between the Southern Pacific Co. and plaintiffs' predecessors in ownership of said land during all the said time, kept up and maintained for the benefit of these plaintiffs and their predecessors and for the benefit of said land, by the said Southern Pacific Company."

The complaint also alleges that it is the duty of Lane county to acquire by donation. purchase, agreement, or condemnation the right of way for such highway. The plaintiff showed from a written agreement that: "The state and county jointly and severally agree to indemnify and save harmless the company from any and all claims, demands, expense or damage arising out of the violation of any covenants, conditions or reservations contained in any deed or deeds by which property affected by this agreement has been acquired by the company, caused by the construction and/or maintenance of the said Siuslaw Highway, and also to reimburse the company on account of any additional expense to which it may be put in complying with any such covenant, condition or reservation."

The defendant by its answer admits several paragraphs of the complaint, and as a further and separate answer alleges, in substance, the...