Hall v. Bowers
| Decision Date | 23 November 1928 |
| Docket Number | No. 26171.,26171. |
| Citation | 117 Neb. 619,222 N.W. 40 |
| Parties | HALL v. BOWERS ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
“In an equity case appealed to this court, if it is desired to review alleged erroneous rulings of the trial court as to the reception of evidence, a motion for a new trial must be filed and overruled in the district court.” Farmers' Loan & Trust Co. v. Joseph, 86 Neb. 256, 125 N. W. 533.
Where lands have been legally condemned and appropriated for railroad right of way through a farm, the use of a strip of that right of way, granted by written license from the railroad company to one of its patrons for his convenience in driving live stock to the railroad station for shipment and terminable on short written notice, will not be enjoined at the instance of the adjoining owner who is the owner of the fee in the right of way, in the absence of special or irreparable damage to such owner.
Appeal from District Court, Richardson County; Raper, Judge.
Suit by Thomas L. Hall against Emerson L. Bowers and others. From the decree, plaintiff appeals. Affirmed.
Thompson, J., dissenting.Burkett, Wilson, Brown & Wilson, of Lincoln, for appellant.
Kennedy, Holland, De Lacy & McLaughlin, of Omaha, for appellees.
Heard before GOSS, C. J., and THOMPSON and EBERLY, JJ., and REDICK and STALMASTER, District Judges.
This suit was brought to enjoin defendant from using the right of way of the railroad company for the purpose of driving live stock toward a local station for shipment to market. From a decree adjudging that Emerson L. Bowers, the chief defendant, might use a lane on the right of way created under a license from the railroad company the plaintiff appeals.
Emerson L. Bowers (who will be referred to as defendant unless it becomes necessary to distinguish him from other defendants) and Thomas L. Hall own and occupy farms north of the village of Verdon, both located in the west half of a certain section. The Hall farm is directly south of the Bowers farm and therefore is nearer to the railroad station at Verdon, which is their normal shipping point. The railroad runs in a southeasterly direction through both farms toward Verdon. The right of way is held by the railroad company by virtue of condemnation proceedings. On the easterly side of the right of way Mr. Hall has on his farm a private road 23 feet wide running southward from his improvements to the east and west public highway on the south of his farm. From this public highway there is a public highway south toward Verdon and adjacent to the east side of the right of way. The evidence does not show how far Verdon is from the east and west highway, but it is not far. Previously the defendant had to drive his stock for shipment north of his home and around by the public road, additional distance of about two miles, to Verdon, but some time prior to the commencement of the suit he had been driving them down the right of way to the aforesaid east and west public highway and thence to Verdon along the said public highway adjacent to the right of way. He testified that it saved him $40 to $50 a car to use this shorter route to drive his hogs to Verdon for shipment as compared with hauling them by truck, which was necessary when taking the longer route, because it is too far and there are too many bridges on the road; and that during the prior year he had had a total of 141 cars of all kinds for all his farms in and out of Verdon on the Missouri Pacific. Plaintiff had two private way crossings of the railroad near his improvements in the northern part of his farm for the use of that part of his farm west of the railroad.
The petition was filed March 4, 1926, and we assume that is the date of the commencement of the suit. At that time defendant had no license from the railroad company to use its right of way for the purpose complained of; and for some time he had been driving his stock through a fence on his south line and thence down the right of way and on plaintiff's private road, which was not then fenced against the right of way. Such was the situation until after the suit was commenced.
The evidence shows that under date of April 10, 1928, defendant and the Missouri Pacific Railroad Corporation in Nebraska, which owned the railroad in question, entered into a written agreement, called a “License to occupy railroad right of way.” This license covered a strip of the right of way 28 1/2 feet wide along the east side thereof and next to the private road of plaintiff. It extended from the east and west highway in a northeasterly direction about 2,870 feet to defendant's land. It provided for a fence along the boundary of the strip nearest the railroad track and for gates to be constructed across the strip where it intersected the private crossings of plaintiff. The license was not to be operative until the fence and gates should be constructed and installed, and it provided for other things not necessary to state here. The gates and fence were not yet constructed, but a fence had been erected on the right of way line between the railroad and the Hall private road before the time of trial.
The district court found that, at the commencement of the action, the defendant Emerson Bowers had, without lawful right, been using the railroad right of way where it crossed plaintiff's lands for the purpose of driving live stock to the station at Verdon, that at such times they had trespassed on plaintiff's lands and private driveway and that, at the commencement of the action, plaintiff was entitled to an injunction restraining said defendant from using the right of way and from said trespasses on said land; that, after the action was begun, the railroad company had granted said defendant the license to drive his live stock through the lane made by the boundary line fence of the right of way and by the fence between that and the railroad track; and that said license was valid as between plaintiff and defendant. The court decreed that the defendant might use the land described only as...
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