Harvey v. Missouri Pacific Railroad Company

• Decision Date: 10 June 1922
• Docket Number: 23,592
• Citation: 111 Kan. 371,207 P. 761
• Parties: J. W. HARVEY, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

207 P. 761

111 Kan. 371

J. W. HARVEY, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant

No. 23,592

Supreme Court of Kansas

June 10, 1922

Decided January, 1922.

Appeal from Osborne district court; WILLIAM R. MITCHELL, judge.

Reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUIETING TITLE--Unused Portion of Railroad Right of Way--Right of Holder of Legal Title to Possession. The holder of the fee title to land taken under condemnation proceedings for railway purposes remains the owner of the property, and has the right to occupy and use such portion of the condemned property as the railway company does not actually require or use for the proper, safe, convenient and efficient discharge of its duties as a public carrier; but such occupancy and use are neither adverse, hostile, nor inconsistent with the rights of the railway company, nor will the lapse of time bar the railway company of its rights acquired and paid for under the condemnation proceedings.

2. SAME--Possession of Unused Portion of Right of Way--Possession Not Adverse to Railroad Company. Certain lands of plaintiff's predecessor in title were condemned in 1879 for railway purposes. Hitherto the defendant company has not used or needed all the land condemned, and a portion of of it has been continually occupied and used by the plaintiff and his predecessors in title. Held, that as plaintiff and his predecessors in title were strictly within their rights in occupying and using that portion of the property not yet required for railway purposes, there has been no adverse, hostile, inconsistent use to the prejudice of the railway company, nor has the latter been excluded so as to give rise to an independent right founded on fifteen years' adverse possession; and an action on the part of the fee title holder to quiet his title against the railway company cannot be maintained.

W. P Waggener, Walter E. Brown, both of Atchison, and N. C. Else, of Osborne, for the appellant.

H. McCaslin, and Edgar C. Bennett, both of Osborne, for the appellee.

OPINION

DAWSON, J.:

The plaintiff brought this suit to quiet his title to some land in Osborne which was condemned in 1879 for railway sidetracks, depots, workshops, water station and stockyards. Plaintiff is the successor in title to the fee holder of 1879, and the defendant is the successor of the railway corporation for whose use the property was condemned.

Notwithstanding the lapse of years and the general development of that community, only a limited portion of the land condemned in 1879 has yet been used or needed for railway purposes--the usual hundred-foot strip for a right of way. During this long interim successive holders of the fee title have had uninterrupted use and enjoyment of the condemned land to within fifty feet of the center of the railway track. Encroaching to that limit there was built and maintained for many years (from 1885 to 1901) the stables and buildings of a county fair association which then owned the property. These structures have now been removed, but the present owner and plaintiff has a stockyard and scales worth $ 200 on the property involved herein. The plaintiff says "I brought this suit to find out if I did own it or didn't."

Since the plaintiff holds the fee title he is of course the owner nor did he need to bring any suit to quiet his title. ( K. C. Rly. Co. v. Allen, 22 Kan. 285.) One whose property is subjected to condemnation for railway or other public uses is none the less the owner of the fee and holder of the ultimate title. He has what the law calls the servient estate. The party for whose use the condemnation was made has what is called the dominant estate. And while the fee holder, after condemnation and compensation, may not interfere with the rights of the holder of the dominant estate, yet as owner he may still continue to use the property for any purpose which does not frustrate the public aims and ends for which the property was condemned. If gold, diamonds, or other minerals lay beneath the main line of this railway within the hundred-foot limit now actually used for railway purposes, these minerals would belong to the plaintiff and he might mine for them so long as he did not interfere with the operation of the railway nor imperil the surface support. (Railroad Co. v. Schmuck, 69 Kan. 272, 76 P. 836.) If the railway at Osborne should be abandoned or relocated elsewhere than on plaintiff's property the dominant estate would terminate and the defendant's right acquired by condemnation would terminate and revert to the...