Chicago, R.I. & P. Ry. Co. v. Hayes

• Citation: 113 P. 315,49 Colo. 333
• Parties: CHICAGO, R.I. & P. RY. CO. v. HAYES.
• Decision Date: 07 March 1910
• Court: Supreme Court of Colorado

113 P. 315

49 Colo. 333

CHICAGO, R.I. & P. RY. CO. v. HAYES.

Supreme Court of Colorado

March 7, 1910

Rehearing Denied Feb. 6, 1911.

Appeal from District Court, El Paso County; Louis W. Cunningham Judge.

Action by J. A. Hayes against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. A. Low, Paul E. Walker, and Sheafor & Kinney for appellant.

Walter Scott, for appellee.

MUSSER J.

About the year 1888, the Board of Trade of the city of Colorado Springs, to induce the building of a new railroad, undertook to obtain, for the Chicago, Rock Island & Colorado Railway Company, soon succeeded by the Chicago, Kansas & Nebraska Railway Company, a right of way in and near the city. J. A Hayes, the plaintiff, and two others, owned a tract of ground just north of the corporate limits, over which it was proposed to run the road. Mr. D. B. Fairley, on behalf of the Board of Trade, negotiated with Mr. Hayes for a right of way over this ground. Mr. Hayes told Mr. Fairley that he and his co- owners would give the company a right of way over their land, with the understanding that there should be no cuts or embankments thereon. Later it was learned that a cut would be necessary, and Mr. Hayes was so informed. Finally, Mr. Hayes said that a right of way would be given and the cut permitted, provided that no embankments were thrown up. The company desired a right of way 200 feet wide. Mr. Fairley testified that, while he had 200 feet in mind, he would not say that width or any width was ever mentioned to Mr. Hayes. Mr. Hayes testified that no width was ever mentioned. The right of way on either side of plaintiff's land was 200 feet wide. The plan of the Board of Trade was to secure money enough by subscriptions from the residents of Colorado Springs to purchase the right of way necessary in and near that city. Mr. Hayes, for himself and co-owners, made a subscription of $500, and it was understood, either at the time it was made or soon thereafter, that this subscription should not be paid in money, but would be considered paid by the right of way given. Afterwards the railroad company entered upon the land of the plaintiff and constructed thereon a single-track road, which appears to have been completed and in operation about the year 1888, or 1889, and since its construction it has been continuously operated. After the cut was made and the road built, Mr. Hayes ascertained that the company had thrown up an embankment near the cut to keep out water which might accumulate from lands above. He made objection to this embankment, and refused to give any deed for the right of way until that matter was adjusted. Later on the defendant succeeded to all the rights of the Chicago, Kansas & Nebraska Railway Company. The dispute relative to the embankment continued until about October, 1891. At that time, the president of the defendant company came to Colorado Springs, and he and a civil engineer connected with the company and Mr. Hayes went upon the ground to look over the situation. The result of this conference was that a written agreement was entered into between Mr. Hayes and his co-owners and the defendant, by its president, wherein it was recited that a certain deed, bearing even date with the agreement, to wit, October 17, 1891, was executed and put in escrow by Mr. Hayes and his co-owners, conveying to the Chicago, Kansas & Nebraska Railway Company a strip of land 100 feet in width, being 50 feet in width on each side of the center line of the railroad as then constructed and operated, and upon the performance, by the company of certain things relative to the embankment and other matters mentioned in the agreement, the deed should be delivered to the company. The embankment was referred to in the agreement as upon the land deeded, and the company agreed to reduce this to a height of two feet, round it off, slope it smoothly to the surface, and keep it so. The embankment was thus confined to the land deeded. The company performed what it was to do under the agreement, whereupon the deed, conveying the 100-foot strip, was delivered to it, and recorded about November, 1892. On March 2, 1889, Mr. Hayes and his co-owners caused to be filed in the recorder's office a plat of North Colorado Springs, executed by them, showing lots, blocks, streets, and alleys north and south of the railroad. Within this plat was an unplatted space, in the center of which appeared two lines about 1/32 of an inch apart, between which there appears on the blueprint in evidence alternate white and blue spaces about 1/8 of an inch long, as railroad tracks are usually designated on plats. Along this narrow track appears, in one place, the letters 'C., K. & N. Ry.,' and on one side of the plat, on each side of the railroad track, appear the figures '100,' and on the other side of the plat, on each side of the railroad track, appear the figures '125.' These figures indicate the width of the unplatted space, which was bounded on its northerly and southerly sides by the lines indicating the boundaries of blocks, though these lines are continuous across the streets and alleys, and indicate the boundaries of the platted portion.

On August 5, 1890, Mr. Hayes and his co-owners filed a plat, executed by them, vacating the portion of the plat of North Colorado Springs, lying south of the railroad. This plat showed the unplatted space the same as the previous plat, except that along the narrow railroad track appeared the words 'Chicago, Rock Island & Pacific Ry.,' and on the same day another plat was filed showing that the portion that had been vacated was replatted as North End Addition No. 3 to the city of Colorado Springs, and showing the unplatted space as before, with the words 'Chicago, Rock Island & Pacific Ry.' along the narrow line of the track. Nothing more appears on the unplatted space to indicate what it was designed for. The defendant drew out on cross-examination the fact that the unplatted strip was made the width indicated in order to remove the platted lots farther from the railroad cut as a protection to the lots. After the first plat was filed, Mr. Hayes caused fences to be constructed around the blocks, and fences were built along the northerly and southerly sides of the unplatted portion about 100 feet distant from the center line of the railway track. These fences were built for the purpose of showing the blocks as platted. The testimony is that in the lapse of time these fences fell, and in about 1894 the railway company rebuilt the fences on either side, approximately 100 feet from the center line of the track. The cut, as originally constructed over the land, was about 25 feet deep and less than 100 feet wide at the top; that is, less than 50 feet wide on either side of the track. The ground on either side of the cut was a gravel bed. The record indicates that about the year 1897 the company began digging this gravel from the sides of the cut, and used it along its line for ballast and concrete work. It continued to so remove this gravel until at the time of the trial the testimony shows that it had removed 1,730 cubic yards from the 50-foot strip immediately north of the 100-foot strip that had been deeded to it, and 7,270 cubic yards from the 50-foot strip immediately south of the deeded strip. The evidence was that this gravel was worth from 10 to 25 cents a cubic yard during the six years before the trial. About the year 1897 the cut first appeared to Mr. Hayes to be more than 100 feet in width, and he and his co-owners caused an examination to be made by a civil engineer, who in January, 1898, reported to Mr. Hayes that the railroad company had widened the cut, and that it was then from 100 to 120 feet wide. Mr. Hayes at once informed the servants of the railroad company in charge that they had gone beyond the company's lines, and must not excavate any more in the cut. Excavation ceased for a while, to be later resumed. Mr. Hayes continued protesting and endeavored to bring about a cessation and adjustment of what he claimed was a trespass upon the land, and finally in October, 1901, he was informed by a letter from the vice president of the defendant company that the railroad claimed a right of way 200 feet wide and the right to remove the earth to that width, and suggested that the best way to settle the controversy was through the courts.

In August, 1903, this action was commenced to recover the possession of the 50-foot strip lying north of and along the 100-foot strip, which had been deeded, and the 50-foot strip lying south of and along the deeded strip, and to recover damages for the detention of the premises and the removal of the gravel therefrom. The plaintiff was the owner of an undivided one-third interest and his co-owners are not parties to this action. The company in its answer denied, in substance, the plaintiff's ownership and right to possession of the land in controversy. The answer further contained an affirmative defense, setting out the recordation of the plats above mentioned, and alleging that thereby the owners had dedicated and conveyed to the public and to the company the premises afterwards deeded, as well as the premises in controversy--in all 200 feet--as a right of way. The defense also alleges that in 1888 Mr. Hayes and his co-owners subscribed in writing and thereby promised to pay $500 to the Chicago, Rock Island & Colorado Railway Company to aid it in the construction of the proposed railroad; that at the time it was agreed that the subscribers should have the right to pay their subscription by the conveyance of a right of way, and that in consideration of being released from said subscription the owners did agree to convey as a right of way...