Dotson v. The Atchison

• Decision Date: 12 February 1910
• Docket Number: 16,361
• Citation: 81 Kan. 816,106 P. 1045
• Court: Kansas Supreme Court
• Parties: W. S. DOTSON, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

106 P. 1045

81 Kan. 816

W. S. DOTSON, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 16,361

Supreme Court of Kansas

February 12, 1910

Decided January, 1910.

Appeal from Harvey district court; PETER J. GALLE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ADVERSE POSSESSION -- Grantor -- Presumption. The possession of a grantor of land after conveyance is not considered to be adverse to his grantee in whom he has vested entire title to the premises, and can not be so regarded until the grantor explicitly renounces the title of the grantee or positively asserts a claim of title in himself which is brought to the attention of the grantee.

2. EJECTMENT -- Remedy -- Land Used for Railroad Right of Way without Objection. Where a railroad company builds a spur track on land owned by it and afterward sells the land on which the track is built, without reserving the right of way, and then continues to use and operate the track for a great many years for its own convenience, as well as for the benefit of the public, with the knowledge and acquiescence of the owner, such owner can not maintain an action of ejectment to evict the railroad company from the premises.

3. WORDS AND PHRASES -- "Public Use" -- Spur Track of a Railroad. Whether the use of a spur of a railroad is public is not determined by its length nor the number of industries it may serve. If it is a part of a railroad system which the public may use on equal terms as of right, and is subject to government regulation, it is a public use, whether few or many are accommodated by its operation.

William R. Smith, O. J. Wood, Alfred A. Scott, and C. S. Bowman, for the appellant.

Ezra Branine, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action of ejectment, brought by W. S. Dotson against the Atchison, Topeka & Santa Fe Railway Company to recover a narrow strip of land from the side of lot 7, being a part of block 47, in the city of Newton, on which the railway company had built a spur of its railway system. The spur was built by the railway company in 1871, when it owned the land upon which the railroad was built, including lot 7. Afterward, in August, 1871, this and other lands were conveyed by the railway company, without reservation, to the Newton Town Company. In October, 1875, the lot was conveyed by the Newton Town Company to Muse, Spivey & Randall. They conveyed it to F. L. Briggs in 1882, and he to Harry S. Dean in June, 1886. Dean conveyed it to S. Lehman in April, 1887, who in turn conveyed it to Dotson, the appellee, in January, 1905. There were no exceptions or reservations of the right of way of the railroad in any of the deeds conveying lot 7. The spur was built on the line dividing lots 7 and 8, and has been continuously used for railroad purposes since its construction in 1871. The conveyance of lot 8 contained a reservation of a right of way for the railroad. Two contentions were made by the railway company: First, that it had been in adverse possession of the ground occupied by the company as a right of way for more than fifteen years, with the knowledge and acquiescence of the owner, and had thereby acquired a perpetual easement by prescription; second, the entry upon the land and the use of it for public purposes for so many years, whether with or without the consent of the owner, bars him from maintaining ejectment. The trial court held against both contentions and rendered a judgment evicting the railway company from the strip of land in controversy.

On the first proposition--that the railway company had acquired an easement by prescription--it is argued that the use and enjoyment which will give title to an easement by prescription is substantially the same in character as the adverse possession which will give title to real estate. That may be conceded, but in either case it must be an adverse possession. It is contended that as the company had uninterrupted and exclusive possession for a longer period than is fixed by the statute of limitations it must be presumed that it was hostile and adverse. From the character of the railway company's possession it is easy to infer that the owners of the lot had full knowledge of the occupancy, but that does not determine that the possession was adverse. It is not enough that possession be exclusive. It must be hostile, and hostility of possession can not be presumed from mere exclusive possession, no matter how exclusive or long-continued it may have been. If there had been no privity of contract relation between the railway company and its grantee, and if the company, being a stranger to the owner, had taken possession and exercised acts of ownership over the land, it might, in the absence of explanatory evidence, have been presumed that its possession was adverse. Here, the railway company conveyed the land after the railroad was built. The conveyance was absolute. No easement or other interest was reserved. In the absence of evidence to the contrary, the possession of the grantor who has made such a conveyance is presumed to be temporary and in subservience to the title of his grantee. The possession of a grantor of land is not considered to be adverse to a grantee who has been vested with the entire title to the premises, and can not be so regarded until the grantor explicitly renounces the title of his grantee or positively asserts a hostile claim of title in himself, which is brought to the attention of the grantee. (McNeil v. Jordan, 28 Kan. 7; Sellers v. Crossan, 52 Kan. 570, 35 P. 205; Hockman v. Thuma, 68 Kan. 519, 75 P. 486; Bird v. Whetstone, 71 Kan. 430, 80 P. 942.)

Since it is deemed that the possession of the grantor is held in subserviency to the grantee, and that he does not intend to deny the title he has conveyed, strong, clear evidence of a purpose to claim adversely to the grantee is necessary to the starting of the statute of limitations. In Zeller's Lessee v. Eckert et al., 45 U.S. 289, 11 L.Ed. 979, it was said:

"The only distinction between this class of cases and those in which no privity between the parties existed when the possession commenced is in the degree of proof required to establish the adverse character of the possession. As that was originally taken and held in subserviency to the title of the real owner, a clear, positive and continued disclaimer and disavowal of the title, and assertion of an adverse right, and to be brought home to the party, are indispensable before any foundation can be laid for the operation of the statute. Otherwise, the grossest injustice might be practiced; for, without such notice, he might well rely upon the fiduciary relations under which the possession. was originally taken and held, and upon the subordinate character of the possession as the legal result of those relations." (Page 296.)

Here there was no proof of a disavowal of the title conveyed nor an assertion that the possession held after making the conveyance was other than permissive. In Railway Co. v....