Denver & R.G.R. Co. v. Mills

• Decision Date: 22 February 1915
• Docket Number: 4141.
• Citation: 222 F. 481
• Parties: DENVER & R.G.R. CO. v. MILLS.
• Court: U.S. Court of Appeals — Eighth Circuit

222 F. 481

DENVER & R.G.R. CO. v. MILLS.

No. 4141.

United States Court of Appeals, Eighth Circuit.

February 22, 1915

R. G Lucas, of Denver, Colo. (E. N. Clark, of Denver, Colo., on the brief), for appellant.

Harry S. Silverstein, of Denver, Colo., for appellee.

Before CARLAND, Circuit Judge, and T. C. MUNGER and YOUMANS District judges.

YOUMANS District Judge.

The appellant is the successor of the Denver & Rio Grande Railway Company, which was incorporated in 1870, under the laws of the territory of Colorado, and which was authorized by charter to construct a railway line from Cuchara, in Huerfano county, Colo., westward to Alamosa, in Conejos county, Colo. By act approved June 8, 1872, Congress granted to said railway company and its successors and assigns 'the right of way through the public domain one hundred feet in width on each side of the track,' together with certain adjacent lands, and also certain privileges similar to those granted to the Union Pacific Railroad Company. Afterwards the time to build the road was extended by Congress to 1882. The railway company completed a narrow gauge line of railroad from Cuchara westward to La Veta, in Huerfano county, in 1876. It completed its line westward to Alamosa and began running trains thereon July 4, 1878. The land described in the bill is a 320-acre tract, and lies about a mile and a half west of La Veta. The title was originally acquired from the government by homestead entries made in 1882. Notation was made on the receipts issued by the United States land office that the entries were subject to the right of way of the Denver & Rio Grande Railway Company. The patent for each homestead referred to the number of the final certificate but did not except the right of way.

About May, 1899, the Denver & Rio Grande Railroad Company, the successor of the Dever & Rio Grande Railway Company, acquired a location for a new and different line for a distance of at least 25 miles in Huerfano and Costillo counties from a point a short distance west of La Veta to a point between there and Alamosa. The point of diversion began a short distance east of the lands described in the bill. The railroad company procured from the then owners of such lands the right of way for the new line. The deeds for that purpose were obtained from the adult owners, and the title of certain minors was acquired by condemnation. The company constructed a standard gauge track over the new line, and on November 12, 1899, removed the rails and ties from the old line between the points at which the new line began and ended. When the rails and ties were removed, all of the original right of way included within the exterior boundaries of the 320-acre tract was fenced as a part of that tract, irrigation ditches were cut across it, and some of it was cultivated. During the years 1905 and 1907, the entire tract was conveyed to one Fred C. Sager, by the heirs of the original entrymen. On April 28, 1911, Sager conveyed the property to J. A. Ownbey, who was the agent of appellee. On May 22, 1911, Ownbey instituted proceedings for registration of title under the so-called Torrens law of Colorado, and prosecuted the same to a final decree. On August 29, 1911, Ownbey conveyed the property to appellee. Since the removal of the ties and rails on November 12, 1899, the entrymen and their successors in title have returned the entire 320 acres for taxation, and have paid the taxes thereon.

In the annual return for taxation for 1899 by appellant to the state board of equalization, that portion of the line from which the rails and ties had been removed was described as 'Abandoned Track Veta Pass Line.' In subsequent annual returns it was described as 'Unused Narrow Gauge Track,' 'Unused Grade over Veta Pass,' 'Unused Track and Grade,' and 'Unused Grade and Track.' Assessments were made according to such returns, and taxes paid by appellant. On January 15, 1906, in consideration of the payment of $50 annually, appellant executed an instrument, called a 'license,' to the board of county commissioners of Huerfano county to use 12.8 miles of the old right of way for the purposes of a free public highway. The term was one year, and thereafter at the option of the railroad company, to be terminated upon 60 days' written notice. On June 1, 1912, the railroad company entered into a contract with the Alliance Coal Company whereby, in consideration of the payment by it to the railroad company of the sum of $24,164, the latter agreed to construct a track to the mines of the coal company, which were situated upon or near the old right of way. The distance was 6.27 miles. On June 1, 1912, the railroad company entered upon the tract of land described in the bill and began constructing a road to the mines. On June 12, 1912, the appellee filed his bill, alleging that the appellant, acting under an unfounded claim, was commencing to construct a railroad track across his land without having acquired a right of way therefor, and sought an injunction. A preliminary injunction was issued on July 3, 1912, and appellant appealed therefrom to this court. On August 14, 1912, it filed an answer, claiming title to the right of way, and at the same time a cross-bill to quiet its title thereto. In the event that the court should hold against its claim of title, appellant prayed in its cross-bill that injunction be withheld, or suspended, and that it be permitted to acquire title by condemnation. On September 27, 1912, on appeal, an order was entered in this court to the effect that the injunction was properly issued, but directing the lower court to suspend the injunction and permit appellant to proceed with the construction of its line upon giving bond and further directed the lower court to determine, in the regular course of equity proceedings, the question whether or not the railroad company still had its right of way, as it claimed, over the property in dispute, and, if it determined that it had, to enter a decree accordingly; on the other hand, if it determined that it had not, then to ascertain and assess appellee's damage for the taking of the right of way. The court below found that appellant was not entitled to a right of way, and ascertained what appellee's damages were, and adjudged the amount against appellant. This is an appeal from that decree.

The assignment of errors makes the following specifications: (1) That the lower court had no jurisdiction to hear and determine this action, because appellee had a plain, adequate, and complete remedy at law. (2) That the lower court was without jurisdiction because the amount in controversy did not exceed $3,000, exclusive of interest and costs. (3) That the court erred in finding and decreeing title to the disputed right of way in appellee. (4) That the court erred in admitting the testimony of the witnesses James A. Ownbey and Joseph K. Kinkaid. (5) That the court erred in awarding appellee $1,000 for the old grade. (6) That the allowance of mileage to J. A. Ownbey as a witness was unauthorized.

1. At the time of the entry by the appellant on June 1, 1912, the appellee and his grantors had been in possession of the old right of way for a period longer than that required to give title under the statute of limitations of Colorado. Their possession had been continuous, open, notorious, and adverse. Irrigation ditches had been cut across the old right of way. All of it susceptible of cultivation had been put into cultivation. The appellant entered under a claim of right, for the purpose of laying its track, with a full knowledge, however, of the adverse possession of appellee and the length of time such possession had contained. Appellant now maintains that appellee had a plain, adequate and complete remedy at law, and that therefore there was no jurisdiction in a chancery court to entertain this suit and issue an injunction.

In the case of Livingston v. Livingston, 6 Johns.Ch. (N.Y.) 497, 10 Am.Dec. 353, the rule was laid down that equity will interpose to prevent irreparable mischief. The rule has since been enlarged to the extent of holding that one in possession, claiming title, will be granted an injunction to restrain a trespass by one who claims under color of title where the threatened act tends to the destruction of the inheritance. More v. Massini, 32 Cal. 590; Scudder v. Trenton & Delaware Falls Co., 1 N.J.Eq. 694, 23 Am.Dec. 756; Falls Village Water Power Co. v. Tibbetts, 31 Conn. 165; Johnston v. Hyde, 25 N.J.Eq. 454; Pennsylvania Co. v. Ohio River Junction R. Co., 204 Pa. 356, 54 A. 259; Clark v. Smith, 13 Pet. 195, 10 L.Ed. 123; Holland v. Challen, 110 U.S. 15, 3 Sup.Ct. 495, 28 L.Ed. 52; Pittsburg, etc., R. Co. v. Fiske, 123 F. 760, 60 C.C.A. 621; Chapman v. Toy Long, 5 Fed.Cas. 497, No. 2,610; 22 Cyc. 826.

We think there was ample ground for the issuance of the injunction. But that question is no longer open in this court. In the appeal from the order granting the injunction this court said in its decree:

'Upon consideration of the appeal from the injunction in this case, which was granted by the court below before the filing of the answer and cross-bill, and upon consideration of the motion of the appellant in this court upon the complaint, the answer, and the cross-bill to suspend the injunction and permit the railroad company to enter upon the land in dispute and construct and operate its railroad, pending the suit, across and along the tract whose title is in dispute herein, it is adjudged and ordered that, to the extent hereafter stated, the motion should be and is granted, that the original injunction in accordance with the decision of this court in City of Newton v. Levis, 79 F. 15, 25 C.C.A. 161, was not wrongfully granted, and the order for its issue

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