Griswold v. Minneapolis, St. P. & S.S.M. Ry. Co.

• Citation: 97 N.W. 538,12 N.D. 435
• Decision Date: 04 November 1903
• Docket Number: 6731
• Court: United States State Supreme Court of North Dakota

97 N.W. 538

12 N.D. 435

WILLIS H. GRISWOLD, ALBERT DERBY AND GEORGE F. BALL, SUING FOR HIMSELF AND AS TRUSTEE FOR ELIZABETH M. BALL, GEORGE F. BALL, MARGARETE RYDER AND WINNIFRED E. NARAMORE, v. MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY COMPANY, A CORPORATION

No. 6731

Supreme Court of North Dakota

November 4, 1903

Appeal from District Court, Richland county; W. S. Lauder, J.

Action by Willis H. Griswold and others against the Minneapolis, St Paul & Sault Ste. Marie Railway Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Purcell & Bradley, for appellant.

The condition contained in the conveyance of the right of way to the defendant, was a condition subsequent, and the land owner cannot eject the corporation for a breach of a condition subsequent. Wood on Railway Law, 604; Hornback v Cincinnati, etc., R. R. Co., 20 Oh. St. 81; Dunn v Railway Co., 24 Mo. 493; Goodin v. Canal Co., 18 Oh. St. 169; Roberts v. N. P. R. R. Co., 158 U.S. 1, 15 S.Ct. 756; Atlanta, etc., R. R. Co. v. Barker, 31 S.E. 452; Indiana, etc., R. R. Co. v. Allen, 53 N.E. 456.

Failure to bring action, until after public interests have intervened, will prevent its successful prosecution. In such case the plaintiff may recover compensation, but not possession. Railroad Co. v. Johnston, 59 Pa. 290; Smart v. Railroad Co., 20 N.H. 233; Harrington v. Railroad Co., 17 Minn. 215; Harlow v. Marquette H. & O. R. Co., 2 N.W. 204; Maxwell v. Bay City Bridge Co., 2 N.W. 639.

Unless acquiescence is prolonged until the statute of limitations has run, an action for damages will lie. Railway Co. v Butler, 46 Am. Rep. 580; Blair et al. v. Kiger et al., 12 N.E. 293; Rusck v. Milwaukee L. S. & W. R., 11 N.W. 253; Evans v. R. R. Co., 64 Mo. 453; N. P. R. R. Co. v. Smith, 171 U.S. 260, 18 S.Ct. 794.

Chas. E. Wolfe, for respondents.

The defendant acquired its right to the land in dispute by contract; the termination of the contract leaves it a trespasser. But it can still exercise the right of eminent domain. Jackson, etc., Ry. Co. v. Adams, 9 So. Rep. 2, 14 L. R. A. 533.

The plaintiffs--who are with others co-owners--may maintain ejectment against all the world except their co-owners, and recover the whole estate. Mather v. Dunn, 76 N.W. 922, and cases cited; Brady v. Krueger, 66 N.W. 1083.

A full and complete equitable title will sustain an action in ejectment against a wrong doer not connected with the legal title. Merrill v. Dearing, 47 Minn. 137, 49 N.W. 693; Hancock v. McAvoy, 151 Pa. 460, 18 L. R. A. 781.

The question of misjoiner is waived by not being raised by answer below. Rev. Codes 1899, 5272; Mather v. Dunn, supra; Sykes v. First Nat. Bank, 49 N.W. 1058.

Under the constitution and statutes of this state, an action in ejectment will lie by a land owner to recover possession of land from a railroad company, the same as from an individual, and such action is the proper remedy. Ritchie v. Kansas, N. & D. Co., 39 P. 718; Lewis v. St. Paul, M. & M. Ry. Co., 58 N.W. 580 (S. D.); Sherman v. Milw. Lake Shore & W. R. R. Co., 40 Wis. 645; Hull v. C. B. & Q. R. Co., 32 N.W. 162; Blaisdel v. Winthrop, 118 Mass. 138; Railroad Co. v. Smith, 78 Ill. 96; Railroad Co. v. Pres't Knox College, 34 Ill. 195; Coburn v. Pacific Lumber & Mill Co., 46 Cal. 32; Cloes v. B. C. R. & N. Co., 64 Ia. 149; White v. Railway Co., 64 Iowa 281; Cox v. Louisville R. R. Co., 48 Ind. 178; Jacksonville, etc., Ry. Co. v. Adams, 14 L. R. A. 533; Pittsburg & S. R. R. Co. v. Jones, 59 Pa. 433; Pittsburg & L. E. R. Co. v. Bruce, 102 Pa. 23; Bartleson v. Minneapolis, 33 Minn. 468, 23 N.W. 839; Harrington v. St. P. & S. C. Ry. Co., 17 Minn. 215; Lohman v. St. P., etc., Ry. Co., 18 Minn. 174.

Any other remedy but ejectment would be inadequate. Thomas v. Hunt, 32 L. R. A. 857; Lyman v. Suburban Ry. Co., 60 N.E. 515, 52 L. R. A. 645.

It is proper practice to render judgment as herein entered, and stay execution or proceeding for a reasonable time, to enable the defendant by appropriate proceedings to condemn the land. Jacksonville, etc., Ry. Co. v. Adams, 14 L. R. A. 533.

OPINION

YOUNG, C. J.

This action was instituted in the district court of Richland county for the purpose of ejecting the defendant railway company from a strip of land used by it for a right of way. The defendant is, and has been since February 12, 1892, a railroad corporation, operating a line of railroad from Sault Ste. Marie, Mich., to Portal, N.D., and over the lands involved in this action, and is a common carrier of freight and passengers, and of the United States mail, and is engaged in interstate commerce. On February 12, 1892, the land in question was conveyed to the defendant by warranty deed containing the usual covenants of warranty. The conveyance was upon a condition subsequent, the condition being contained in the following clause: "Providing a depot and station is erected and maintained on section 21, above described, continuously; otherwise this land shall revert to original owner." Subsequent to the execution and delivery of the deed a depot was constructed, but the same was removed from the land on April 26, 1900. The case was tried to a jury. At the trial the defendant objected to the introduction of any evidence under the complaint "on the ground that such complaint does not state facts sufficient to constitute a cause of action, for the reason that it appears affirmatively from the allegations contained in the complaint that the defendant, the Soo Railway Company, was placed in possession of the premises in controversy by the plaintiff under a warranty deed containing a condition subsequent, and that a possessory action which seeks to deprive the defendant of the possession of its road after it is constructed and operating trains cannot be maintained." This objection was overruled, and exception taken. A motion for a directed verdict upon the same grounds was also overruled, and exception taken. Upon the plaintiff's motion, the court directed a verdict for the plaintiff for the relief demanded in the complaint, towit, possession of the land in question. Thereafter judgment was entered in favor of the plaintiff for the immediate and exclusive possession of the real estate in question and for costs. The judgment further ordered that execution thereon by stayed for a period of six months from the date of the entry of the judgment to enable the defendant to condemn said land and acquire an easement thereon and thereover under the laws of the state of North Dakota. Defendant has caused a statement of the case to be settled embodying specifications of numerous alleged errors in the admission and rejection of evidence, and upon the court's refusal to direct a verdict for the defendant and to the direction of a verdict in favor of the plaintiff. The appeal is from the judgment.

Two reasons, and two reasons only, are urged in this court by the defendant as grounds for reversing the judgment. The first is that the evidence does not show title in the plaintiffs to the premises in controversy, either legal or equitable, such as will entitle them to maintain an action of ejectment even in case ejectment will lie. The second is that the remedy by ejectment cannot be granted on the facts existing in this case. Neither contention can be sustained. As to the first contention, it may be said that the plaintiffs claim perfect, legal, and equitable title. Whether this be the fact or not, we need not determine. The evidence shows conclusively that the plaintiffs in any event have an undivided interest in the real estate in controversy, and, if not the sole and absolute owners of the entire tract, are tenants in common. It is therefore unnecessary and improper to determine the extent of their interest, for the law is well settled that a tenant in common of real estate is entitled to the possession of the same as against all the world save his co-tenants, and may maintain ejectment and recover possession of the entire tract as against strangers to the title. Sherin v. Larson, 28 Minn. 523, 11 N.W. 70; Collier v. Corbett, 15 Cal. 183; Hart v. Robertson, 21 Cal. 346; Mahoney v. Van Winkle, 21 Cal. 552 at 553; Treat v. Reilly, 35 Cal. 129; Phillips v. Medbury, 7 Conn. 568; Robinson v. Roberts, 31 Conn. 145; Weese v. Barker, 7 Colo. 178, 2 P. 919; Wheeling P. & B. R. Co. v. Warrell, 122 Pa. 613, 16 A. 20; Mather v. Dunn, 11 S.D. 196, 76 N.W. 922, 74 Am. St. Rep. 788; Allen v. Higgins, 9 Wash. 446, 37 P. 671, 43 Am. St. Rep. 847.

The remaining question is whether the plaintiffs may resort to the possessory action formerly afforded by the action of ejectment to vindicate their rights. The appellant contends that they may not, but must invoke other remedies. Before taking up the consideration of this question, it is proper to state that both parties to this controversy agree that the clause in the deed above quoted constituted a condition subsequent, and that upon the failure of the defendant to maintain the depot the title to the land conveyed by said deed and involved in this action reverted. Neither is there any claim made that the plaintiffs did not promptly assert their alleged right of possession upon the failure of the defendant to maintain the depot, or that after the forfeiture they consented or acquiesced in any way in defendant's possession of the premises. Neither is it claimed that the plaintiffs have omitted to take any steps necessary to terminate the estate granted by the deed, or to authorize them to maintain this action, if it may be maintained. The condition upon which the grant was made viz., that the title to the land should revert to the original owners if the defendant failed to maintain a depot at the point in question, did not restrict the maintenance of depots at other points,...