Chicago Great Western Railroad Company v. Zahner
| Decision Date | 09 April 1920 |
| Docket Number | 21,692 |
| Citation | 177 N.W. 350,145 Minn. 312 |
| Parties | CHICAGO GREAT WESTERN RAILROAD COMPANY v. MINNIE B. ZAHNER |
| Court | Minnesota Supreme Court |
Petition on Rehearing Filed April 30, 1920
Action in ejectment in the district court for Ramsey county. The case was tried before Dickson, J., who made findings and ordered judgment in favor of defendant. From the judgment entered pursuant to the order for judgment, plaintiff appealed. Reversed.
Deed for spur track -- construction.
1. A deed given by the owner of two lots conveying a portion thereof to the plaintiff railroad company for the construction of a spur track, reciting, after describing by metes and bounds the portion conveyed, "such portions of lots three and four being deemed necessary and to be used for a track contemplated and to be laid by said Chicago Great Western Railway Company on said land for commercial purposes," conveyed a railroad right of way easement and not the fee.
Deed for spur track -- recovery of possession by railroad.
2. Under such a deed the plaintiff railroad company is entitled to the exclusive possession of the right of way easement. The owner of the servient estate is not entitled to a partial possession upon the theory that such possession will not disturb the railroad company, and the railroad company may recover possession without showing that it has immediate need for railway purposes of the portion occupied by the owner of the servient estate, or that such occupancy disturbs the enjoyment of the right of way for railway purposes.
A. G Briggs and Charles H. Weyl, for appellant.
Norton & Norton, for respondent.
Action of ejectment tried to the court. From a judgment for the defendant the plaintiff appeals. There are two questions:
(1) Whether a deed to the plaintiff railroad company conveyed the fee or a railroad right of way easement.
(2) If it conveyed only a railroad right of way easement, whether the defendant, the owner of the servient estate, can maintain possession of a portion of the right of way, not disturbing the actual use for railway purposes, until it is shown by the railroad that it needs possession thereof for railway purposes.
1. In 1905 David A. Secombe, the predecessor in title of the defendant, was the owner of lots 3 and 4 of block 1 in Minnesota Transfer Addition of St. Paul. He wanted a side-track or spur constructed from the plaintiff's line to a piece of property some distance to the northwest of his lots, the exact location of which is not shown, where he purposed keeping his contracting outfit. He gave the plaintiff a deed of the rear portion of lots 3 and 4. He secured for it a right of way affecting lot 2, northerly of his lots, and lots 5 and 6, southerly thereof. The right of way granted was, substantially, of so much of the lots affected as was within 50 feet of the rails of the spur. The deed of lots 3 and 4 was a warranty conveying the lots to the plaintiff, "its successors and assigns, forever * * * to have and to hold the same * * * to the said party of the second part, its successors and assigns, forever." After describing by metes and bounds the portions of the two lots conveyed there was the recital: "Such portions of lots three and four being deemed necessary and to be used for a track contemplated and to be laid by said Chicago Great Western Railway Company on said land for commercial purposes."
The defendant, who a few years later succeeded to the Secombe title, occupies the front part of the two lots with a residence. She built a shed extending back on lot 4 to within six or eight feet of the spur track, in which she conducts a charcoal business. Other portions of the lots conveyed by the deed are used in some fashion in connection with the charcoal business. The portion of the right of way taken from lots 3 and 4 is the property in dispute.
The trial court held that the deed did not convey the fee but a railroad right of way easement. We concur in this view. There are cases which hold, as noted by the trial court in its memorandum, that a clause such as the one quoted does not limit the grant. The question is upon the intent of the parties. Within the principle of our holdings there was no intent to grant a fee, but an intent to grant a railroad right of way easement, which would revert upon abandonment. See Flaten v. City of Moorhead, 51 Minn. 518, 53 N.W. 807, 19 L.R.A. 195; Chambers v. Great Northern Power Co. 100 Minn. 214, 110 N.W. 1128; Norton v. Duluth Transfer Ry. Co. 129 Minn. 126, 151 N.W. 907, Ann. Cas. 1916E, 760; note 1 L.R.A. (N.S.) 806; note L.R.A. 1918B, 701, 705; note 6 Ann. Cas. 239, 242.
The deed conveyed to the plaintiff a railroad right of way easement with the rights which attend such an easement.
2. The trial court held that the defendant might use the right of way deeded by her predecessor in title, so long as such use did not disturb the plaintiff in its use for railway purposes. It is not shown by the evidence that the railway company intends making any definite present use of the right of way occupied by the defendant other than the ordinary right of way use for purposes of traffic. After an attentive consideration we find ourselves unable to adopt the conclusion reached by the trial court.
There is authority for the claim that the owner of the servient estate may occupy land granted as an easement, so long as he does not interfere with the enjoyment of the use by the dominant owner, and this doctrine in some instances has been applied to railroad rights of way. In 33 Cyc. 189, the prevailing doctrine, applicable to railroads, is stated to be as follows: "As a general rule a railroad company has practically the right to the uninterrupted and exclusive possession and control of the land between the lines of its location, necessary for conducting its business, except where it is built on a public highway or over public crossings; and the former owner has no right to occupy the land conveyed in any mode or for any purpose without the company's consent, as for the purpose of cultivating crops on the right of way, unless such rights or privileges are conceded by the company or reserved by the grantor." The cases quite well support the rule stated and we think the rule accords with the weight of authority. Paxton v. Yazoo, etc., R. Co. 76 Miss. 536, 24 So. 536; Wilmot v. Yazoo, etc., R. Co. 76 Miss. 374, 24 So. 701; Hayden v. Skillings, 78 Me. 413, 6 A. 830; Troy & B.R. Co. v. Potter, 42 Vt. 265, 1 Am. Rep. 325; Pittsburgh, etc., Ry. Co. v. Jones, 86 Ind. 496, 44 Am. Rep. 334; New York, etc., R. Co. v. Armstrong, 92 Conn. 349, 102 A. 791; Cairo, V. & C. Ry. Co. v. Brevoort, 62 F. 129, 25 L.R.A. 527; Wright v. St. Louis S.W. Ry. Co. 175 F. 845; Illinois Cent. R. Co. v. Houghton, 126 Ill. 233, 18 N.E. 301, 1 L.R.A. 213, 9 Am. St. 581; Olive Sternenberg & Co. v. Sabine & E.T. Ry. Co. 11 Tex. Civ. App. 208, 33 S.W. 139; Pittsburgh, etc., R. Co. v. Peet, 152 Pa. St. 488, 25 A. 612, 19 L.R.A. 467.
The spur track became a part of the plaintiff's railway system. Liedel v. Northern Pac. Ry. Co. 89 Minn 284, 94 N.W. 877; Ochs v. Chicago & N.W. Ry. Co. 135 Minn. 323, 160 N.W. 866, Ann. Cas. 1918E, 337. It was not constructed with the purpose of directly serving defendant's two lots. When the right of way was acquired it became a part of the railway system devoted to public service, with no special relation to the lots now owned by the defendant. A railroad right of way, though we call it an easement, is an interest in property of a definite character. In ...
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