Chicago, M. & St. P. Ry. Co. v. Des Moines Union Ry. Co.
| Decision Date | 22 November 1913 |
| Citation | 144 N.W. 54,165 Iowa 35 |
| Parties | CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant, v. DES MOINES UNION RAILWAY COMPANY |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. W. H. MCHENRY, Judge.
THE controversy is over about one mile of railway extending from Sixteenth or Farnham street to Twenty-eighth street in the city of Des Moines. The plaintiff alleged that it was entitled thereto as a part of the property and franchise purchased by it of the Des Moines, Northern & Western Railroad Company, and which the latter conveyed to it about May 1, 1899, and a correction deed several years later. The defendant denied that the line in dispute was included in such purchase or deed, alleged ownership thereof, adverse possession, and that plaintiff was now estopped from claiming it. Decree was entered dismissing plaintiff's petition and quieting title in defendant to each parcel of ground making up the right of way. The plaintiff appeals.
Reversed.
Cook Hughes & Sutherland, for appellant.
Guernsey Parker & Miller, for appellee.
The issues raised by the pleadings involve the franchise, tracks, and right of way now occupied and used by the Des Moines Union Railway Company, and over which the trains of the Chicago, Milwaukee & St. Paul Railroad Company are operated, extending from Sixteenth or Farnham street to Twenty-eighth street in Des Moines.
The recital of some facts is essential to a correct understanding of the controversy. The railway of the Wabash, St. Louis & Pacific Railway Company, which became the Wabash Railroad Company, and will be referred to hereafter as the Wabash Company, extended from St. Louis, Mo., to Albia, in this state, prior to 1880, and in December of that year the Des Moines & St. Louis Railway Company was organized by J. S. Polk, F. M. Hubbell, J. S. Clarkson, and J. S. Runnels to construct and operate or lease a railroad from Albia to Des Moines. It was completed, entering the city from the east, to the depot between Fourth and Fifth streets, now known as the Union Depot, in the spring of 1883, and leased in perpetuity (practically) to the Wabash Company. The Des Moines, Adel & Western Railroad Company had been incorporated in 1875 to construct a railroad from Des Moines to Waukee and westward to the Missouri river. The persons named above acquired control of this company, and by amending its articles changed its name to Des Moines Northwestern Railway Company. Its line (narrow gauge) extended from Waukee to Panora, and under the new management was built from Panora on to Fonda, which, with the road from Clive to Waukee and the half from Farnham street to Clive, will be referred to hereafter as the Fonda line. Through foreclosure proceedings, a new company known as the Des Moines & Northwestern Railway Company acquired the property in September, 1887. The same persons incorporated the St. Louis, Des Moines & Northern Railway Company in April, 1881, to construct a narrow gauge road from Des Moines to Boone, and this was completed the following year, and will be referred to hereafter as the Boone line. It conveyed to the Des Moines & Northwestern Railway Company all its title and interest in the road from Clive to Waukee and one-half of its road "from the station of Clive to Farnham street in the city of Des Moines." Through foreclosure sale, the Boone line passed to the Des Moines & Northern Railway Company. Early in 1891 action looking to consolidation was taken by the Des Moines & Northwestern Railway Company and the St. Louis, Des Moines & Northern Railway Company, and this was effected in December of that year; said companies organizing the Des Moines, Northern & Western Railway Company, which acquired the property of both corporations. Subsequently, and in 1895, the Des Moines, Northern & Western Railroad Company, organized in that year, acquired the property through foreclosure proceedings, and May 1, 1899, in pursuance of previous negotiations, conveyed to the Chicago, Milwaukee & St. Paul Railway Company, plaintiff herein, the railroads mentioned, "commencing at a point in the east line of section 7, township 78 N., range 24 W., in the city of Des Moines, Polk county, Iowa and thence extending in a general northern direction via Clive," etc. This deed further recited: "It being the intention to convey all the aforesaid road lines with all their appurtenances and incidents as received by the grantor herein directed a deed of conveyance executed and delivered by G. M. Dodge, F. M. Hubbell, and F. C. Hubbell, purchasing committee, on the 8th day of Feb., 1895."
The east line of section 7, referred to, marked the city limits, and is known as Twenty-eighth street, and, upon discovering a discrepancy in the description, as was claimed, the officers of the Des Moines, Northern & Western Railroad Company executed a deed purporting to convey the railroad, etc., from Farnham or Sixteenth street to the east line of section 7 or Twenty-eighth street to the Chicago, Milwaukee & St. Paul Railway Company, and it is this 5,120 feet of right of way and track between Sixteenth or Farnham street and Twenty-eighth street, or an area of one hundred and twenty-nine acres, that is involved in this action, which was begun June 27, 1907. The accompanying map indicates the location of the several roads and the company constructing the same: [SEE DRAWING IN ORIGINAL ]
Of course, the last-mentioned deed is of no consequence unless the Des Moines, Northern & Western Railroad Company owned the line of railway between Farnham and Twenty-eighth streets at the time of the first conveyance to plaintiff, and, if it did then own said line, title passed thereby or under the general clause contained in the first deed. See Wisconsin & Arkansas Lumber Co. v. Cable, 159 Iowa 81, 140 N.W. 211. The plaintiff contends: (1) That it acquired all the property of the Des Moines, Northern & Western Railroad Company under the first deed, and that this included the disputed property between Farnham street and Twenty-eighth street; (2) that F. M. Hubbell and F. C. Hubbell were president and superintendent respectively of said company, and F. C. Hubbell was president of the defendant, and F. M. Hubbell a director, and that they held a controlling interest in each company, and that F. M. Hubbell, in negotiating the sale of the property of said Des Moines, Northern & Western Railroad Company to plaintiff, through Roswell Miller, its president, knowingly and falsely represented to said Miller that said company's line extended from Twenty-eighth street, when it in fact began at Farnham street, and by such false representations induced the plaintiff to accept the deed from Twenty-eighth street; and, farther, (3) that the railroad was constructed from Farnham street to Clive and from there to Boone as one road, and the franchise was for the entire line, and that it is plaintiff's duty to operate such entire line, and not to allow it to be dismembered. Plaintiff prays that the court ascertain defendant's rights to the road, right of way, and property between Sixteenth street and Twenty-eighth street, enjoin defendant from interfering with the management and operation of the same by this plaintiff, and ascertain the amount expended thereon by defendant, which plaintiff offers to repay, if held liable.
By way of answer, the defendant (1) alleged that it owned the property in controversy; (2) denied omission of any property of the Des Moines, Northern & Western Railroad Company from the deed to plaintiff dated May 1, 1899; (3) admitted that F. M. Hubbell represented to Miller that the line of road extended from Twenty-eighth street, but denied any misrepresentations; (4) pleaded that plaintiff is estopped from claiming title to said property by reason of having leased the same from defendant since the execution of the deed, and by allowing improvements to be made under a claim of ownership since that time without objection; and (5) pleaded adverse possession.
The defendant prayed that the petition be dismissed, that the answer be treated as a cross-petition, and title to the property in controversy be quieted in it as against the claim of plaintiff.
The plaintiff, by way of reply, reiterated the charges of fraud, pleaded that defendant is estopped from claiming said right of way, for that, prior to the execution of the first deed to plaintiff, it had acquired all the mortgage bonds and stocks of the Des Moines, Northern & Western Railway Company, and before it was informed that defendant claimed the disputed line.
The first and main question to be determined is whether the Des Moines, Northern & Western Railroad Company had title to the line in dispute at the time of the conveyance to plaintiff. The latter necessarily plants its claim thereto on the theory that it became owner through mesne conveyances from the St. Louis, Des Moines & Northern Railway Company. On the other hand, the defendant contends that the last-named company never had or acquired title thereto, that the property in dispute was purchased with money furnished by Gen. G. M. Dodge or James F. How, trustee, that defendant acquired the same by purchase from Dodge and How, trustee, and their assignees and grantees; the St. Louis, Des Moines & Northern Railway Company and the Des Moines Northwestern Railway participating in the transaction.
Plaintiff readily traced title from its grantor to the St. Louis, Des Moines & Northern Railway. In the conveyance to plaintiff, the Des Moines, Northern & Western Railroad Company undertook to convey to it "the aforesaid railroad lines" as received by it under a conveyance...
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