Denver & S.L. Ry. Co. v. Pacific Lumber Co.

• Citation: 86 Colo. 86,278 P. 1022
• Decision Date: 27 May 1929
• Docket Number: 12072.
• Parties: DENVER & S. L. RY. CO. v. PACIFIC LUMBER CO.
• Court: Supreme Court of Colorado

278 P. 1022

86 Colo. 86

DENVER & S. L. RY. CO. v. PACIFIC LUMBER CO.

No. 12072.

Supreme Court of Colorado

May 27, 1929

Rehearing denied June 17, 1929.

Department 1.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by the Pacific Lumber Company against the Denver & Salt Lake Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded with instructions.

Smith & Brock and David W. Oyler, all of Denver, for plaintiff in error.

Quaintance & Quaintance, of Denver, for defendant in error.

CAMPBELL J.

This is an action by the Pacific Lumber Company, a domestic private corporation, against the Denver & Salt Lake Railway Company a public corporation and common carrier, to restrain the defendant company from interfering with plaintiff's use of a crossing over the defendant's railroad track where it passes across the plaintiff's patented land. Further relief was sought in the nature of a mandatory order to compel the defendant to reinstate the crossing which the defendant had removed, and compensatory damages for its destruction. Upon the trial to the court without a jury the only relief awarded was an order prohibiting any interference by the defendant with the plaintiff's use of this crossing. The decision was based solely on an estoppel in pais which plaintiff pleaded in its replication. The defendant railway company is the owner by purchase of its railroad which the original owner constructed from Denver over the Continental Divide to northwestern Colorado. The crossing in question is between West Portal and Fraser in Grand county, not far distant from the Berthoud Pass public highway. The railroad was constructed at this point in 1905. The railway company, its builder, acquired its right of way under the Act of Congress of March 3, 1875 (43 USCA §§ 934-939), as the result of its filing in May, 1904 with the Secretary of the Interior of the prescribed application therefor. There is no evidence in this record that any private or public road or highway was on this land now owned by the plaintiff before the railway company acquired its right of way. While the road was in process of construction at this point in 1905, there was a wagon road that was used for hauling ties from the adjacent country to the railway company's right of way. The railway company, after its road was built, permitted the crossing on and over its right of way to remain for some years and later removed it.

The right of way granted by this act of Congress is more than a mere easement. It amounts to a qualified or limited fee, and so long as the defendant railway company maintains its line of road it has the right of exclusive use and possession of its right of way. The grant conferred by the act is of corporeal property. The Interior Department has consistently so held, and the Supreme Court of the United States in numerous decisions has put its stamp of approval upon the Secretary's ruling. Noble v. Union River L. R. Co., 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123; Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044, in which other cases are cited. At the trial the plaintiff did not claim or attempt to prove that this private road was in existence when the railway company's right of way was secured in 1904. Indeed, the plaintiff's grantor did not acquire his land until 1908 and then by cash entry, and the inception of the plaintiff's ownership by purchase of the entryman was in 1917, long after the railroad was built and the defendant's right of way was secured. Plaintiff does not claim that this road across the defendant's tracks is a public road. It admits that the crossing in question is its own private property and used for its own private purposes. The trial court rested its decision for the plaintiff, as stated, on the ground of an equitable estoppel. If the judgment can be sustained at all, it must be on this ground, for no other possible ground can be found in the evidence. For this reason we do not discuss the other grounds for relief and confine our discussion to the one question of estoppel.

It is too clear for discussion that the act of Congress under which this right of way was acquired, conferred upon the grantee thereof a limited fee with a right of exclusive use and possession thereof so long as the railway was maintained and operated by a public carrier. The United States was interested in the development of its own domain and the private property adjoining this right of way. The railway company owes a duty to the public, which it serves as a public carrier, and in the view of the United States the grantee of this right of way could not adequately and fully perform its duty as a common carrier unless its exclusive use of its right of way is retained. This phase of the case is well illustrated in a recent decision of the Circuit Court of Appeals of the Eighth Circuit handed down at the May, 1928 term of court. Midland Valley Railroad Co. v. Sutter et al., 28 F. (2d) 163. In the course of the opinion, in discussing the right of a railroad company to its right of way secured under this act of Congress, the court said: 'The decisions of the national courts and of a majority of the state jurisdictions, however, are to the effect that the railroad company...