Blakely v. Chicago, Kansas & Nebraska Railway Company
| Decision Date | 07 November 1895 |
| Docket Number | 3607 |
| Citation | 64 N.W. 972,46 Neb. 272 |
| Parties | MAGGIE C. BLAKELY v. CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY |
| Court | Nebraska Supreme Court |
REHEARING of case reported in 34 Neb. 284.
REVERSED AND REMANDED.
Alfred Hazlett and L. M. Pemberton, for defendant in error:
By permitting the defendant's grantor, the Chicago, Kansas & Nebraska Railway Company, to enter upon the land and fully construct and operate its road thereon without objection or protest, knowing all the time just what was being done, the plaintiff is estopped to maintain ejectment.
By the deed to the Republican Valley Railroad Company plaintiff conveyed her interest in the land, and has now no title or interest which she can assert against defendant. (Yates v. Van De Bogert, 56 N.Y. 527; Nicoll v. New York & E. R. Co., 12 N.Y. 121; Page v. Heineberg, 40 Vt. 81; Walsh v. Barton, 24 Ohio St. 28; Crolley v. Minneapolis & St. L. R. Co., 30 Minn. 541; Chicago, B. & Q. R. Co. v. Lewis, 53 Iowa 101; Soukup v. Topka, 55 N.W. [Minn.], 824; Vail v. Long Island R. Co., 106 N.Y. 283; Farnham v. Thompson, 34 Minn. 330; Horner v. Chicago, M. & St. P. R. Co., 38 Wis. 165; Wier v. Simmons, 55 Wis. 637; Strong v. Doty, 32 Wis. 381; Williams v. Western U. R. Co., 50 Wis. 71; Rawson v. School District, 7 Allen [Mass.], 125; Greene v. O'Connor, 25 A. [R. I.], 692; Higbee v. Rodeman, 28 N.E. [Ind.], 442; Heaston v. Commissioners of Randolph County, 20 Ind. 398; Schipper v. St. Palais, 37 Ind. 505; Sumner v. Darnell, 27 N.E. [Ind.], 162; Vermilya v. Chicago, M. & St. P. R. Co., 24 N.W. [Ia.], 234; Junction R. Co. v. Ruggles, 7 Ohio St. 1.)
Even if it should be held that the grant was made upon condition that the grantee should use and occupy the land for right of way purposes, the condition is being substantially complied with, for it is still being used for such purpose. (
Griggs, Rinaker & Bibb, for plaintiff in error:
No estoppel was pleaded by the defendant. It is necessary to plead an estoppel in order to take advantage of it. (Nebraska Mortgage Loan Co. v. Van Kloster, 42 Neb. 746.)
In order to constitute an equitable estoppel by silence or acquiescence, it must be made to appear that the facts, upon which it is sought to make the estoppel operate, were known to the party against whom the estoppel is urged, and unknown to the party urging it. (Nash v. Baker, 40 Neb. 294.)
Plaintiff's deed did not convey an absolute title to the strip through her land. It merely conveyed a right of way or easement. (Robinson v. Missisquoi R. Co., 59 Vt. 426; Keeler v. Wood, 30 Vt. 242; Jones v. Van Bochove, 61 N.W. [Mich.], 342; Flaten v. City of Moorhead, 53 N.W. [Minn.], 807; Babcock v. Latterner, 30 Minn. 417; Ft. Worth & R. G. R. Co. v. Jennings, 13 S.W. [Tex.], 270.)
An opinion was filed in this case which was reported in 34 Neb. 284. A rehearing was afterward granted, and upon reargument it is now reached for further consideration. The deed of Maggie C. Blakely to the Republican Valley Railroad Company conveyed a certain strip of land one hundred feet wide across certain lands described by government subdivisions, "to have and to hold the same unto the said railroad company, its successors and assigns." In connection with the language just quoted the controversy in the case hinges on the words following the names and description of the grantors and the acknowledgment of the receipt of $ 900 consideration, which words are as follows: "do hereby grant, bargain, sell, and convey unto the Republican Valley Railroad Company, its successors and assigns, for right of way and for operating its railroad only," etc. The Chicago, Burlington & Quincy Railroad Company afterwards became the successor of the grantee above named and, as such successor, assumed the right to, and, in so far as it had power, did convey to the defendant in error forty-two and a half feet in width of the above one hundred-foot strip. Plaintiff in error insists that by this conveyance there was an abandonment of that part of the right of way which the Chicago, Burlington & Quincy Railroad Company assumed to convey to the defendant in error, and that, therefore, plaintiff is entitled in this her action of ejectment to recover the same. The judgment of the district court of Gage county in denial of this right is presented for review.
The defendant in error contends that the words "for the right of way and operating its railroad only," following the granting clause, do not create a condition subsequent, and that, therefore, this action cannot be maintained. In Chapin v. School District, 35 N.H. 445, the term above used is thus discussed: " The deed of the plaintiffs in error contained no condition of the nature of that above indicated and illustrated, hence there was no condition subsequent.
Thus far we have agreed with the defendant in its contention that the deed of Maggie C. Blakely and husband contained no condition subsequent. It is assumed in argument that this much being established, the conclusion must of necessity follow that plaintiff could not insist that by the abandonment of a part of such right of way, such part would revert to Mrs. Blakely. The conveyance by her in which her husband joined was of a certain strip of land one hundred feet wide to the Republican Valley Railroad company, "its successors and assigns, for right of way and for operating its railroad only." That the limitation, "for operating its railroad only," was confined to but one railroad requires no argument to establish. It is equally clear that this one road might be the grantee named, its successors or assigns, and it is not claimed that the defendant is a successor of the Republican Valley Railroad Company. If the right to operate a railroad upon the right of way strip conveyed by the Blakelys was, as we have seen, limited to one road, it would be impossible that defendant, under its deed, could deprive the Chicago, Burlington & Quincy Railroad Company of its right as a successor of the Republican Valley Railroad Company to operate its railroad upon the right of way granted by the Blakelys, for there was made by the Chicago, Burlington & Quincy Railroad Company no conveyance which purported to convey that portion of the right of way on which its railroad line was situated. If the defendant obtained a right to use a portion of the originally granted one hundred feet, by virtue of the deed from the Chicago, Burlington & Quincy Railroad Company of only a fraction thereof in severalty, the deed last named must be held not only to have conferred upon defendant full title to this fraction, but it must in addition be held to have destroyed the title and the right of use by the Chicago, Burlington & Quincy Railroad Company of the remaining fractional part which it never conveyed, for the Blakelys, by their deed, expressly limited the use to one company. A construction which would lead to such a result is absurd, and therefore we must construe the limitation of the sole use of the railroad in the deed of the Blakelys as not operative in favor of the defendant.
It has already been shown that the deed under consideration was one that contained no condition subsequent. We shall now endeavor to ascertain and determine the exact nature of the title which, by virtue of the deed to it, was held by the Republican Valley Railroad Company, and which therefore, that company was able to convey to the Chicago, Burlington & Quincy Railroad Company. In Robinson v. Missisquoi R. Co., 59 Vt. 426, 10 A. 522, the clause, "for the use of a plank road," which immediately follows the description of the land conveyed, was held to limit the estate conveyed to a mere easement. In Flaten v. City of Moorhead, 51 Minn. 518, 53 N.W. 807, in a deed in the same connection as just indicated there was the clause: "Said tract of land hereby conveyed to be forever held and used as a public park." The supreme court of Minnesota, in which the above case was decided, held that the grantee did not upon the face of the instrument acquire an absolute title in fee. In Lake Erie & W. R. Co. v. Ziebarth, 6 Ind.App. 228, 33 N.E. 256, the appellate court of Indiana had under consideration a deed executed for a nominal consideration of a right of way one hundred feet wide. This deed provided: "The estate granted hereby is upon...
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Blakely v. Chi., K. & N. R. Co.
...46 Neb. 27264 N.W. 972BLAKELYv.CHICAGO, K. & N. R. CO.Supreme Court of Nebraska.Nov. 7, 1895 ... A grant of a strip of land to a railroad company, for right of way and for operating its railway only, gave ... that before December 20, 1886, the Chicago, Kansas & Nebraska Railroad Company transferred all its property, ... ...