Chadek v. Alberhasky

• Decision Date: 17 October 1961
• Docket Number: No. 50407,50407
• Citation: 253 Iowa 32,111 N.W.2d 297
• Parties: Carl CHADEK, Appellant, v. Charles ALBERHASKY and Martha A. Alberhasky, Appellees.
• Court: Iowa Supreme Court

Page 297

111 N.W.2d 297

253 Iowa 32

Carl CHADEK, Appellant, v. Charles ALBERHASKY and Martha A. Alberhasky, Appellees.

No. 50407.

Supreme Court of Iowa.

Oct. 17, 1961.

Clearman, Oehler, Barker & Meeker, Iowa City for appellant.

L. G. Klein, Iowa City, for appellees.

THOMPSON, Justice.

Plaintiff's petition asking that title to certain real estate be quieted in him was filed on February 21, 1957. Defendant answered in two divisions, the first denying plaintiff's claim of ownership and title, and the second, in the nature of a counterclaim, asking that title be quieted in defendant. Both divisions of the answer asserted adverse possession of the realty in question by the defendant and alleged laches on the part of the plaintiff in asserting his claim. The trial court found both issues with the defendant, holding that he had established title by adverse possession and that the plaintiff was guilty of such laches as to prevent him claiming ownership. From this decree and judgment the plaintiff appeals.

I. The property in question is a segment of an abandoned right of way of the Chicago, Rock Island & Pacific Railroad Company. It adjoins real estate which has been owned by the plaintiff since 1945, when he obtained it by a conveyance from the previous owner; and is approximately 400 feet along the line of plaintiff's property by 50 feet measured to the center of the right of way. The right of way is 100 feet wide and the part claimed by the plaintiff is the south one-half adjacent to his lot. Where there are different landowners on each side of an abandoned right of way, each is the owner to the center. Brugman v. Bloomer, 234 Iowa 813, 816, 13 N.W.2d 313, 314. The legal description of the tract in dispute is set out in the pleadings, is not an issue in the case, and will not be repeated here. The right of way was originally acquired by a predecessor in interest of the Rock Island railroad company by condemnation. These facts are also not controverted.

While there is some showing to the contrary, we think the weight of the evidence is that the right of way was actually abandoned in the late summer or fall of 1939, when the rails were torn up and removed. This was the finding of the trial court and with it we agree. On January 10, 1940, the defendant and his son went to Chicago and for the consideration of $429.10 obtained a quitclaim deed from the railroad company to all of the abandoned right of way. This the defendant says was at the rate of $35 per acre, and the tract covered by the deed was between 12 and 13 acres in extent. It is evident, therefore, that the disputed segment is something less than one-half acre in extent and is a small fraction of the entire property covered by the deed. The defendant has sold some of the remainder of the tract embraced in the deed, but the property in question here is still unimproved. There is a considerable dispute in the facts as to what each of the parties has done in taking possession of the tract is issue here; but as we view the matter it is not necessary to weigh them. It may be said in passing that neither has done a great deal in that respect. Over the years the tract has lain vacant and unimproved and as far as the record shows, substantially unused. Some of the acts of possession which the defendant claims will be stated in our discussion of the issue of laches.

II. Sections 473.1 and 473.2 of the Code of 1958, I.C.A., are important here. They are set out:

'473.1 Relocation of railway. Such part of a railway right of way as is wholly abandoned for railway purposes by the relocation of the line of railway, shall revert to the persons who, at the time of the abandonment, are owners of the tract from which such abandoned right of way was taken.

'473.2 Failure to operate or construct railway. If a railway, or any part thereof, shall not be used or operated for a period of eight years, or if, its construction having been commenced, work on the same has ceased and has not been in good faith resumed for eight years, the right of way, including the roadbed, shall revert to the persons who, at the time of the reversion, are owners of the tract from which such right of way was taken.'

There is contention between the parties as to which applies. The plaintiff claims that his rights accrued under 473.2, while the defendant in argument relies upon 473.1, and calls attention to language in Atkin v. Westfall, 246 Iowa 822, 827, 69 N.W.2d 523, 526. Our final holding there, however, was that it was not necessary to decide the question.

First there is a dispute as to whether either of the reversion statutes set out above applies under the pleadings in the case. The defendant thinks they do not. This is based on the fact that the petition to quiet title, in paragraph 2, pleads facts which make a case of ownership in the plaintiff by adverse possession, if established. The prayer contains a request for general equitable relief. In plaintiff's answer to defendant's counterclaim he pleads that he is the owner by reversionary interest following the abandonment of the right of way. There was considerable testimony as to the date of abandonment and it seems to have been considered throughout the trial as an issue. Certainly it was such as a defense to defendant's counterclaim in asking that title be quieted in him; and we think it was fairly before the court at all times. A prayer for general equitable relief is to be liberally construed. The relief granted under it must be such as will not surprise the defendant. He must have had an opportunity to defend against it. Skemp v. Olansky, 249 Iowa 1, 6, 85 N.W.2d 580, 583. The issue was consistent at least with the answer to counterclaim and seems to have been fully understood by all parties during the trial, as shown by the evidence on the point. It was also, under familiar rules, an issue tried out regardless of the pleadings and so a proper ground upon which to grant or withhold relief. R.C.P. 106, 58 I.C.A., says that a variance between the pleadings and proof shall not be deemed material unless it appears that the opposing party was misled to his prejudice in maintaining his cause of action or defense. No such prejudice appears here; on the contrary, the issue of reversion was fully understood and tried. Reed v. Harvey, Iowa, 110 N.W.2d 442, 443, 444, and citations.

III. The trial court adjudged the defendant had established his title by adverse possession. The court found that, if reversion under the statute could be considered, Section 473.2 rather than 473.1 is applicable. We are again in agreement with the court. The defendant thinks the court was in error in this holding, relying apparently on Atkin v. Westfall, supra. It is true we there said, under the facts of that case, that one of the two sections must apply, and that Section 473.1 applied more clearly than Section 473.2. We said: 'In a sense at least the abandonment was accompanied by a relocation of the line.' But we also said it was not necessary to decide the point, because the same result would be reached under either statute.

But we think that, assuming the dictum in the Atkin case expressed the law as applied to it, there is a clear distinction between the facts there and here. In that case the railroad company had torn up and abandoned its tracks running from the town of Lone Tree west to the Iowa River; its line thereafter ended at Lone Tree. So as we said, 'in a sense' there was a relocation of the line. The old location went to the river; the relocation ended at Lone Tree. There was a relocation of one terminus. No such situation appears here. The record shows the entire line was abandoned. There was no possible relocation.

With the holding that plaintiff's rights accrued under Section 473.2, the basis for any claim of the defendant to title by adverse possession is destroyed. The railroad's rights, under Section 473.2, did not terminate for eight years after the abandonment, which we have held, in accord with the findings of the trial court, was during the year, and the latter part of the year, of 1939. Defendant by his deed secured whatever rights the railroad company had; and this included the right of possession for eight years. His possession, if such he had during that time, was attributable to the rights granted him by his deed. It was adverse to no one, because no one else had a right of possession. Possession, to be adverse, must be hostile; and when the element of hostility is not shown, possession can never ripen into title. 2 C.J.S. Adverse Possession § 53, page 568; and the entry on the land must be such as to give rise to a cause of action by the true owner. Burgess v. Leverett and Associates, Iowa, 105 N.W.2d 703, 706. The application of these principles here is clear. The defendant by his deed acquired whatever right his grantor, the railroad company, had. Substantially, this right was that of possession until the adjoining landowners acquired the property under Section 473.2, after eight years. The plaintiff had no right which he could assert until the expiration of that period. When the defendant took possession, if he did, it was not under such circumstances as gave the...