Buckwalter v. The Atchison

CourtUnited States State Supreme Court of Kansas
Citation67 P. 831,64 Kan. 403
Docket Number12,437
Decision Date08 February 1902

Decided January, 1902.

Error from Neosho district court; L. STILLWELL, judge.

Judgment affirmed.



RAILROADS -- Right of Way -- Ejectment -- Estoppel. Where a landowner has stood by and permitted a railroad company possessing the right of eminent domain to build and put in operation a line of road across his land, and thereby create large interests useful to the company and the public, without first having obtained the authority so to do by the exercise of the right of eminent domain or otherwise, he cannot maintain an action of ejectment against such company to recover the right of way occupied by it and necessary for the operation of its road.

H. P Farrelly, for plaintiff in error.

A. A. Hurd, and O. J. Wood, for defendant in error.




This was an action in ejectment brought by the plaintiff in error, as plaintiff below, against the defendant in error, as defendant below, to recover a strip of land 200 feet wide across 120 acres of land owned by her in Neosho county, this strip being a portion of the right of way of a long and important railroad within and without this state, passing through many counties of this state and connecting its villages and cities. Her petition was filed September 19, 1899. This land was originally a part of what is known as "Osage ceded lands," which, previous to December 28, 1886--that being the date of plaintiff's patent--belonged to the government of the United States. In the latter part of 1883 the railway company from which the defendant derived its title entered upon this land and constructed its line of road across the same. The road was fully completed and this right of way occupied on January 1, 1884, and has been continuously so occupied ever since. The plaintiff had, about July 1, 1880, settled thereon and made valuable and lasting improvements. Title to the land, however, could only be procured by actual purchase and not by preemption or homestead entry. Before the railroad company commenced the building of its line of road it instituted proceedings for the purpose of condemning a right of way through this and other lands in this county. The plaintiff claims that these proceedings were so irregular as to be absolutely void, and that the railroad company took no rights thereunder, one of the infirmities being that, as she was an actual occupant of the land at the time of these proceedings and claimed an interest therein, she was entitled to a written notice, which was not given. As to whether these proceedings were void we do not determine, as we find ourselves compelled to affirm the judgment of the court below regardless of their sufficiency.

This is an action to put a railroad company out of the possession and deprive it of the use of a portion of its right of way, which would thus more effectually stop the running of its trains and the carrying of passengers and freight over its line than would the destruction of bridges or the tearing up of its track, for such damages could be quickly repaired; but to enable the company to resume the use of this right of way, being once legally ejected therefrom, would require the somewhat tedious operation of the process of condemnation under its right of eminent domain. In the meantime not only would the vast financial interests of the company itself be involved and great money loss result to it, but, much more than this, great public inconvenience and loss would result. To estimate how great both might be, we have only to think what general consternation would come to many parts of the state and large numbers of people, were it announced that a section of a half-mile in length in any of our leading railways had suddenly sunk into an abyss, and thereby all communication over such line interrupted for a period of thirty or sixty days. Such interruption and such private loss find no adequate return to the landowner in a case where a like result would be brought about by the decree of a court in an action of ejectment, for, at the end of the time required under the law to accomplish it by a proceeding in condemnation, the railway resumes the use of its road and the landowner must accept the price of his damages. So that, should the court permit plaintiffs to recover in such cases, no benefit could come to them, while incalculable harm, inconvenience and loss would come to the railway company and the general public. Public policy stays the hand of the courts under such circumstances.

Again, we think that the equitable doctrine of estoppel prevents the plaintiff's recovery in this case. She obtained her patent to the land from the government in December, 1886. She lived on the land when the road was built across it, and has known of the operation and existence of the road ever since. She has, of necessity, known of the expenditure of vast sums of money in the building, equipment and extension of the road, and in this case has undoubtedly known of the fact that the road has passed from the hands of the original owners to those of the present proprietors; yet there is no evidence in the record that she has ever in any way manifested her dissent or objection. This being so, she ought not now to be permitted to stop all traffic over and use of this line of road that she has stood by and without objection permitted to be constructed.

These views are abundantly sustained by the authorities. In The Indiana, Bloomington & Western Railway Company v. Allen, 113 Ind. 581, 15 N.E. 446, at pages 583 and 584, this doctrine is announced in the following language:

"What we affirm is, that acquiesence after public rights have intervened will prevent a landowner from destroying the line of road by wresting possession of a part of it from the company. This principle does not rest upon the right of the railroad corporation so much as upon considerations of public policy. The rights of citizens are often abridged in order that the public welfare may be promoted. Chief among the fundamental maxims of jurisprudence is that which declares 'that regard be had to the public welfare as the highest law,' and this maxim underlies the rule we have under discussion. Under our American constitutions the maxim is not pushed so far as in England, but it goes far enough with us to supply ample ground for denying one who has slept upon his rights a right to dispossess a railroad company charged with a service public in its nature, and important to the social and commercial interests of the country. Compensation he may recover, possession he cannot. To the recovery of just compensation his rights are confined. Our conclusion rests on principle and is fortified by authority. (Western Pennyslvania R. R. Co. v. Johnston, 59 Pa. 290; Smart v. Portsmouth etc. R. R. Co., 20 N.H. 233; Harrington v. St. Paul etc. R. R. Co., 17 Minn. 215; Harlow v. Marquette etc. R. R. Co., 41 Mich. 336, 2 N.W. 48; Maxwell v. Bay City Bridge Co., 41 id. 453 2 N.W. 639; The Midland Railway Company et al. v. Smith, 113 Ind. 233, 15 N.E. 256; Evansville & Terre Haute Railroad Company et al. v. Nye, 113 id. 223, 15 N.E. 261.)"

"Vast interests are often involved in the maintenance of railroads. They are charged with a public service, and a public character is so strongly impressed upon them that courts exercise a control over them much beyond that assumed over individual citizens. They are recognized as instruments of interstate commerce, and as such are...

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11 cases
  • Taylor Inv. Co. v. Kansas City Power & Light Co., 40762
    • United States
    • United States State Supreme Court of Kansas
    • 8 Marzo 1958
    ...Kan. 523] by the plaintiff has been modified by this court in subsequent decisions. In Buckwalter v. Atchison, T. & S. F. Railroad Co., 64 Kan. 403, 67 P. 831, it was held that a landowner who stood by and permitted a railroad company possessing the right of eminent domain to build and put ......
  • In re Worldcom, Inc., Docket No. 06-2079-bk.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 14 Octubre 2008
    ...not pursue ejectment or damages for alleged continuing trespass by power company); see also Buckwalter v. Atchison, T. & S.F. Ry. Co., 64 Kan. 403, 403, 67 P. 831, 833 (Kan.1902) (holding plaintiff "must move before public interests are involved" to bring suit for ejectment, but allowing si......
  • St. Louis & S. F. R. Co. v. Mann, Case Number: 9775
    • United States
    • Supreme Court of Oklahoma
    • 7 Septiembre 1920
    ...112 U.S. 645, 28 L. Ed. 846, 5 S. Ct. 306; Boise Valley Const. Co. v. Kroeger (Idaho) 105 P. 1070; Buckwalter v. A. T. & S. F. R. Co., 64 Kan. 403, 67 P. 831; Northern P. R. Co. v. Murray, 87 F. 648. This principle is recognized in Muskogee Electric Traction Co. v. Madden, 55 Okla. 322, 155......
  • Schrag v. The Blaze Fork Drainage District, 25,992
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    • United States State Supreme Court of Kansas
    • 11 Julio 1925
    ...he now complains. Under such conditions he is in no position to maintain injunction against the defendant. In Buckwalter v. Railroad Co., 64 Kan. 403, 67 P. 831, it was said: [119 Kan. 179] "Where a landowner has stood by and permitted a railroad company possessing the right of eminent doma......
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