Gurney v. Minneapolis Union Elevator Co.

• Decision Date: 02 December 1895
• Citation: 63 Minn. 70,65 N.W. 136
• Parties: GURNEY ET AL. v. MINNEAPOLIS UNION ELEVATOR CO.
• Court: Minnesota Supreme Court

63 Minn. 70

65 N.W. 136

GURNEY ET AL.

v.MINNEAPOLIS UNION ELEVATOR CO.

Supreme Court of Minnesota.

Dec. 2, 1895.

(Syllabus by the Court.)

1. Scott v. Railway Co., 21 Minn. 322, followed, as to the effect of a provision in the charter of a railway company authorizing it to take an “absolute fee” in lands condemned for public purposes.

2. The erection and operation of a public elevator and warehouse upon land acquired by a railway company, by condemnation, for public purposes, either by itself or its lessee, are neither a misuser nor an abandonment of its easement in the land occupied by such structure, and the owner in fee cannot maintain ejectment for the land so occupied.

Appeal from district court, Hennepin county; Henry C. Belden, Judge.

Action by Adeline Gurney and Henry D. F. Gurney, by Hazen M. Parker, his guardian ad litem, against the Minneapolis Union Elevator Company. From an order overruling a demurrer to the answer, plaintiffs appeal. Affirmed.

Louis A. Reed, for appellants.

Koon, Whelan & Bennett and W. E. Dodge, for respondent.

START, C. J.

Action of ejectment to recover the possession of the premises described in the complaint, and the rents and profits thereof. The answer put in issue the allegations of the complaint, and, for a second or further defense, alleged title in fee to the premises to be in the St. Paul, Minneapolis & Manitoba Railway Company, under which it claimed right of possession, as licensee. To this second defense the plaintiffs demurred, and from an order overruling the demurrer they appealed.

The material facts alleged in the answer and admitted by the demurrer are substantially as follows: The land in question is a part of a strip 220 feet in width, adjacent to the right of way of the railway company, and the whole of the strip was acquired by it by the judgment of the district court of the county of Hennepin, in proceedings instituted by it under its charter and the laws of the state, and pursuant to the provisions of chapter 1, Laws 1857 (Ex. Sess.), and subsequent acts amendatory thereof. The condemnation proceedings were duly instituted and carried on, and the value of the land taken thereby was assessed and adjudged to be the sum of $17,075.82. Henry S. Gurney was at this time the owner of the land taken, and judgment was duly rendered in the condemnation proceedings by the court in his favor, and against the railway company, for such sum for the value of the land, and it was therein further adjudged that, upon the payment of such judgment, an absolute estate in fee simple to the land so taken and condemned should vest in the railway company, which judgment it paid, and the amount thereof was accepted by Gurney, and the railway company thereupon took possession of the land, and has ever since occupied and used it for railroad purposes. The answer further alleges that, after the railway company had so acquired the land, “it licensed and permitted this defendant to erect and construct upon the land, for the uses and purposes of the railway company, and in connection with, and as a necessary adjunct of, the business of the railway company, a public grain elevator and warehouse, with the necessary power house, engines, annexes, railway tracks, and other appurtenances useful and necessary in connection therewith, which grain elevator, warehouse, and appurtenances were erected upon, and occupy, substantially, that portion of the land described in plaintiffs' complaint herein. The defendant entered upon the land, and erected the elevator and warehouse thereon, and still occupies the same, under and by virtue of the license so granted to it, and not otherwise. That, relying upon the title of the railway company in and to the land, and believing the same to be perfect, it in good faith erected the elevator, warehouse, and elevator plant, as aforesaid. That this defendant never had any notice or knowledge, in any manner, of any defect in the title of the railway company to the land, and that the plaintiffs in this action, and those through or from whom they claim, well knew of the occupation being made, and the possession of the land being taken, by the defendant, and that the plaintiffs, nor either of them, nor any of those through or from whom they claim, made any objection thereto, legally or otherwise. That defendant in good faith actually expended and paid, in the construction and erection of the elevator, warehouse, and improvements, as...