Hanlon v. Union Pac. Ry. Co.

• Decision Date: 03 April 1894
• Citation: 40 Neb. 52,58 N.W. 590
• Parties: HANLON ET AL. v. UNION PAC. RY. CO.
• Court: Nebraska Supreme Court

40 Neb. 52

58 N.W. 590

HANLON ET AL.

v.UNION PAC. RY. CO.

Supreme Court of Nebraska.

April 3, 1894.

Syllabus by the Court.

1. An action of trespass quare clausum can only be maintained where the plaintiff had title or possession at the time of the acts complained of. Railway Co. v. Shepherd (Neb.) 58 N. W. 189, followed.

2. So, where the trespass complained of consists of the occupation of the land by railroad tracks, and the entry and construction of the tracks is admitted to have been beyond the period of limitations for such an action, the plaintiff, to recover, must show title in himself to the land occupied.

3. Where the description in a deed contains a call to and along a line, the true location of which is uncertain, parol evidence is admissible to show that, at the time of the conveyance, a particular line was, in the community, generally recognized by the name used in the deed.

4. Maps proved to be in common and accepted use in the community at the time of the conveyance are likewise admissible for the same purpose.

5. In order to create title by adverse possession, the possession, in addition to other elements, must be exclusive, for the period of limitations.

6. Evidence that a road master in charge of the construction of a side track over certain land, when a person claiming to be the owner of the land objected to the construction of the track, promised such person that he would be paid for the land occupied, is insufficient to prove that the company entered under a license from the claimant, and in recognition of his title.

7. Nor will a license be implied from the fact of occupancy for a long time without objection on the part of the claimant, the claimant relying on adverse possession during that period to establish his title.

8. A corporation chartered by an act of congress, and incompetent to acquire title to land in this state, may still maintain a possession adverse to all persons except the state. Myers v. McGavock (Neb.) 58 N. W. 522, followed.

9. In order to obtain a review of alleged errors, the petition in error must assign the same with such particularity as to enable the court to determine the precise ruling complained of.

Error to district court, Dodge county; Marshall, Judge.

Action in trespass by Frank Hanlon and others against the Union Pacific Railway Company. Defendant had judgment, and plaintiffs bring error. Affirmed.

Frick & Dolezal, for plaintiffs in error.

J. M. Thurston, W. R. Kelly, and E. P. Smith, for defendant in error.

IRVINE, C.

The plaintiffs in error, who were also plaintiffs in the district court, alleged that they were the heirs and widow of Patrick Hanlon, deceased; that on March 18, 1878, Patrick Hanlon became the owner of two tracts of land described in the petition by courses and distances, both tracts being in the city of Fremont; that Patrick Hanlon died, seised of said land, July 1, 1881; that in March, 1879, and at divers other times between that and the beginning of the action, the defendant, “without right or authority, wrongfully and unlawfully, and with force, entered upon said premises, at and near the buildings thereon situated and erected, and committed acts of trespass on said premises, by digging the soil thereof, by laying and putting thereon tracks of iron and wood, and leaving and placing thereon, daily, during said period, steam engines and cars propelled by steam, and by making and suffering, within the four years last past, loud noises and deleterious and offensive odors by live hogs and cattle in said cars, to the injury of said premises, and said buildings thereon situate, and to the depreciation of rental value of said premises and said buildings during all of the said times, to the damage of plaintiffs, in all, in the sum of $1,975.” The action was begun April 28, 1888. For the purposes of this opinion, it will not be necessary to set forth the answer in detail. Among other things in the answer, the trespasses complained of, and the ownership of plaintiffs' ancestor, are denied. There were a verdict and judgment for the defendant.

The first assignment of error we shall notice relates to the sufficiency of the evidence to sustain the verdict. This is the assignment chiefly relied upon, and has been argued ably and elaborately. It will not be necessary to review all the evidence, or discuss all the details of the case; but its intricacies are such, and the questions of fact presented are so combined with questions of law, that it is due to counsel that we should not pass over the assignment with a statement of our conclusions, but that our reasons should be given for holding that the evidence sustains the verdict.

The tracts to which plaintiffs claim title adjoin one another, and constitute a portion of what is known as “lot 3,” in block 214, in the city of Fremont. The original plat of the city of Fremont shows block 214 as one of the southern tier of blocks in the town site. The lots in this portion of the town site were 66 feet by 132 feet. Lot 3 fronts north, and is the third in order, counting from the east line of the block. It appears, however, that the town survey was made prior to the government survey, and through some error--apparently, by not allowing for the variation of the compass--the lines were not correctly located; and at some later period, not definitely fixed, it was ascertained that the half-section line which constitutes the southern boundary of the town site did not correspond with the southern line of the town site, as originally platted, but extended through the southern tier of blocks, forming, some place westward of block 214, an angle with the southern limit, as originally surveyed, cutting off the four southern lots of block 214, and portions of the southern ends of the four northern lots, including lot 3. When the construction of the Union Pacific Railway was undertaken, the owner of the land south of this half-section line conveyed that land to the railway company. Lot 4 in block 214 was also conveyed to the company. It appears from the evidence that in 1865 condemnation proceedings were had for the purpose of appropriating land in Dodge county for the use of the railway company. Under the act of congress relating to such appropriations, the report of the appraisers was required to be returned into a court of record, any judge of a court of record being authorized to appoint the appraisers. Payment of the amount awarded was also required to be made to the clerk of the court. There is in evidence, from the files of the district court of Dodge county, an oath of appraisers, and an award of damages to Alvin Coe, then the owner of lot 3, the land being described as follows: “Said appraisal being for two hundred feet on each side of the central line of said road as located by the engineer of said company, to wit, lot number three in block two hundred fourteen, in the town of Fremont, amounting to about four rods of land, in the county of Dodge, in the territory of Nebraska.” No other record relating to condemnation proceedings was found, but it did appear that there had been a fire in the courthouse, whereby a portion of the records of the court was destroyed. About the year 1865, the Union Pacific Railway was constructed through Fremont, and its depot located near the land in controversy. About the year 1869, Patrick Hanlon contracted for the purchase of a portion of lot 3, and entered into the possession of that portion. March 18, 1878, this portion was conveyed to him by the following description: “Commencing at the northwest corner of lot three in block two hundred fourteen of the city of Fremont, Dodge county, Nebraska; thence running easterly, on south margin of First street, thirty feet; thence running southerly, at a right angle to First street, to the Union Pacific Company's grounds; thence running northwesterly, along the Union Pacific Railway Company's grounds, to the west line of lot number three aforesaid; thence running northerly, along the west line of said lot three, to First street, the place of beginning.” In the mean time, on October 7, 1876, the other tract had been conveyed to Hanlon by the following description: “Commencing at a point in south margin of First street ninety-six feet easterly from northwest corner of block two hundred fourteen of the city of Fremont, Nebraska; thence running southerly, at right angles to First street, to the Union Pacific Railroad Company's grounds; thence running in a southeasterly direction, along said R. R. company's grounds, about twenty-three feet, to the west line of a certain parcel of land sold Fred Weis October 5, 1876; thence running northerly, along west side of land sold Weis, to First street; thence running westerly, along south margin of First street, twenty-two feet, to the place of beginning.” About the year 1872, and while Hanlon was in possession of a portion of the premises, the railway company constructed a side track extending across the southern portion of lot 3, not far from the southern end of Hanlon's building; and at a later period another track was constructed further to the south, but crossing the lot. It is of these tracks that the plaintiffs complain, claiming ownership of the land upon which they are situated.

A great deal of the argument of plaintiffs in error is devoted to showing that the defendant is without title to the land occupied by the tracks. This, however, becomes immaterial. The action is trespass, and cannot be maintained unless plaintiffs either had title, or were in possession of the premises, at the time of the acts complained of. Railway Co. v. Shepherd ...