Hull v. Chicago, B. & Q.R. Co.
| Decision Date | 09 March 1887 |
| Citation | 32 N.W. 162,21 Neb. 371 |
| Parties | CHARLES J. HULL, PLAINTIFF IN ERROR, v. THE CHICAGO BURLINGTON AND QUINCY RAILROAD COMPANY, HUMPHREY BROTHERS HARDWARE COMPANY, SPENCER A. BROWN, FRANK E. PARISH, AND AUSTIN W. WIER, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before HAYWARD, J.
REVERSED AND REMANDED.
Lamb Ricketts & Wilson, for plaintiffs in error.
O. P Mason and Marquett & Deweese, for defendant in error.
This was an action in ejectment instituted in the district court of Lancaster county for the possession of lots 14, 15, 16, and 17 of block No. 70 of the city of Lincoln. Upon a trial in that court judgment was rendered in favor of plaintiff for the possession of lots 14 and 17 and in favor of defendant for lots 15 and 16. Plaintiff in error, being dissatisfied with the finding of the trial court as to the latter described lots, seeks a review thereon by proceedings in error. The defendant has filed a cross-petition in error, and seeks a reversal of the judgment in so far as its right to the possession of the former is affected.
It is insisted by defendant in error that ejectment is not the proper remedy, that the remedy given by statute to land owners, for injuries sustained by taking land for railways, is exclusive of all other remedies and not cumulative. This rule seems to be well settled by adjudications. Mills on Eminent Domain, sec. 87, and cases there cited. See also R. R. Co. v. Fink, 18 Neb. 82, 24 N.W. 439. But if the theory of plaintiff in error is the correct one, that all the proceedings to condemn the real estate in question were void, and defendant acquired no rights thereunder, then it seems to us that the rule as to the statutory remedy being exclusive would not be applicable here, for the action is not one for injuries sustained by taking the land, but for the land itself. Stated differently, the contention on the part of plaintiff in error is that the whole proceeding to condemn the property is a nullity, and that defendant in error is a trespasser from the beginning. If this is true the action in ejectment is the proper remedy.
In R. R. Co. v. Fink, supra, the present Chief Justice, MAXWELL, in writing the opinion of the court, says: While the manner of ascertaining the damages is exclusive, yet if a railroad company takes and occupies real estate without taking the necessary legal steps to condemn the land and thus making its possession rightful, it is, as all others under like circumstances, a trespasser, and cannot justify its possession. Therefore the usual common law remedies are available to the owner. R. R. Co. v. Menk, 4 Neb. 24. Blaisdell v. Winthrop, 118 Mass. 138. Ewing v. St. Louis, 72 U.S. 413, 5 Wall. 413, 18 L.Ed. 657. The owner may enjoin the entry. R. R. v. Menk, supra. Ray v. R. R., 4 Neb. 439. Cameron v. Supervisors, 47 Miss. 264. Paris v. Mason, 37 Tex. 447. Floyd v. Turner, 23 Tex. 292. Pierpoint v. Harrisville, 9 W.Va. 215. Or he may bring ejectment. R. R. Co. v. Smith, 78 Ill. 96. Smith v. R. R., 67 Ill. 191. R. R. v. President of Knox College, 34 Ill. 195.
Where ejectment is brought, the pendency of proceedings to condemn will be no defense to the action. Coburn v. Lumber Co., 46 Cal. 31. And for stronger reasons it would follow that if the proceeding to condemn had been completed, and was so defective as to be void for want of jurisdiction or for other cause, the same rule would apply, and such void proceeding would furnish no defense.
This question being presented by the record and being as we think, of vital importance to the case, we will consider it as next in order.
The answer of defendant in error consists of four separate defenses, which may be stated as follows:
First. A general denial.
Second. That on the 12th day of December, 1879, and long prior thereto, the Burlington and Missouri River Railroad Company in Nebraska was a corporation under the laws of the state, and had built and operated a railroad in said name from Plattsmouth through the counties of Cass, Saunders, and Lancaster, through the city of Lincoln, and thence westward to Kearney. That at said date the business of said company required said lots 14, 15, 16, and 17, in block 70, for the use and operation of its railroad. That said company, in pursuance of the statutes, made application on the 12th day of December, 1879, by filing an application and petition for the condemnation of said lots to the use of said company. A transcript of all the proceedings of condemnation, showing the deposit of the condemnation money with the county judge, is attached to the answer. It is alleged that the money, amounting to one thousand dollars, being deposited, the said railroad company being in possession of the property, the same was occupied by it, and its successor, the Chicago, Burlington and Quincy Railroad Company, to the present time. That no appeal or writ of error to reverse or modify the proceedings, had ever been had, and they were wholly unreversed, unmodified, and in full force, and by which defendant had the right to use and occupy the lots, and could not be ejected therefrom.
Third. That plaintiff's cause of action did not accrue within ten years next immediately preceding the commencement of this action and is barred by the statute of limitations.
Fourth. That in July, 1874, the Nebraska Railway Company, a corporation under the laws of Nebraska, and operating a road from Nebraska City through the city of Lincoln to Seward, took possession of said lots, and in the fall of 1874 took open, notorious, and public possession of said lots, laid side tracks across and over them, and said company from that time to the present, together with its legal successors, has continued in open, public, notorious, and exclusive use and occupancy of said lots for more than ten years next prior to the commencement of this suit; that the Nebraska Railway Company was legally leased to the Burlington and Missouri River Railroad Company, and said lots were used and occupied with station-house, coal-house, side tracks, and in the open, public, notorious and exclusive possession of said Burlington and Missouri River Railroad Company by virtue of said lease. That afterward said last-named company consolidated all its lines of road in Nebraska with the company known as the Chicago, Burlington, and Quincy Railroad Company, and said company has continued in the constant, continuous, notorious, public, and exclusive possession of said lots, and has by its predecessor aforesaid and by itself, occupied the said lots, and been in the public, open, notorious and exclusive use of all of said lots and duly using and occupying the same, with its station-house, coal-house, side tracks, and turnouts for more than ten years next prior to the commencement of this suit, and during all of said time said defendant and its legal predecessors have occupied the same and claimed title thereto, which claim was never questioned until the bringing of this suit.
The answers of the defendants, Humphrey Bros., and of S. A. Brown and Company, each consisted of general denials.
Plaintiff filed his reply to the answer of the defendant railroad company, which consisted of a general denial except as to matters expressly admitted and a specific denial that on the 12th day of December, 1879, or at any other time the Burlington and Missouri River Railroad Company filed any application for the condemnation of the property in question. Alleges that the condemnation proceedings described and set out in defendant's answer are void because the county judge had no jurisdiction over the property and never had jurisdiction to appoint appraisers. That the appraisers had no power to assess damages for taking the property. That no notice was given or served upon the plaintiff as required by law to give said court jurisdiction.
It is alleged that the notice was never published four weeks in any newspaper, but that the same was published in the daily State Journal January 24, 1880, and in the weekly State Journal January 30, February 6 and 13, and at no other times; that the daily State Journal and weekly State Journal at said time were wholly different newspapers, with different subscribers, and circulated in different communities.
It is denied that the Chicago, Burlington, and Quincy Railroad Company and the Burlington and Missouri River Railroad Company ever needed said property, or that they have used or occupied it for railroad purposes, but have leased it to private individuals who use the same for wholly private purposes in no way connected with the business of said companies as common carriers.
It is alleged that whatever possession the said Nebraska Railway Company ever had of the property in question was under and by virtue of certain pretended condemnation proceedings which expressly recognized the title and ownership of plaintiff. That in 1879, or prior thereto, the Nebraska Railway Company surrendered whatever possession it had theretofore had of said property and abandoned the use and occupation thereof. That the B. & M. R. R. Co., the successor of said Nebraska Railway Company, withdrew from the county judge the money deposited by the said Nebraska Railway Company as damages assessed under said pretended condemnation proceedings...
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