Kingsley v. United Rys. Co.

• Decision Date: 15 July 1913
• Citation: 133 P. 785,66 Or. 50
• Parties: KINGSLEY v. UNITED RYS. CO.
• Court: Oregon Supreme Court

133 P. 785

66 Or. 50

KINGSLEY v. UNITED RYS. CO.

Supreme Court of Oregon

July 15, 1913

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by E.D. Kingsley against the United Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action of ejectment instituted by plaintiff, E.D Kingsley, to recover from the defendant United Railways Company, a corporation, possession of a quantity of land being approximately 28 acres in Multnomah county, Or., and damages for the wrongful taking and withholding of the premises and for the rent, use, and occupation thereof. After alleging the corporate existence of defendant, and that it is engaged in operating an electric railway, plaintiff avers that during the month of April, 1906, A.L. Mills executed and delivered to plaintiff a bond for a deed to the above-described premises, and that simultaneously therewith placed plaintiff in possession of the property, and that he is entitled to the exclusive occupation of the same. Continuing, plaintiff alleges that defendant in the month of April, 1908, without right or title thereto, entered upon the premises and ousted plaintiff therefrom, and does now wrongfully, willfully, and maliciously withhold the possession of said premises from plaintiff; that upon the entrance of said premises defendant made deep cuts therein likewise high fills, and drove and erected large numbers of piles and builded expensive railroad bridges, tore down the fences, and constructed a right of way for an electric railway across said land, and is now using the same for the purpose of operating its electric railway system and has used a large portion of the land for the purpose of storing a vast quantity of railway equipment to plaintiff's damage in the sum of $10,000; that the loss incident to the rental value of said premises and the use and occupation thereof during the plaintiff's deprivation has damaged him in the sum of $2,000; and, finally, that defendant occupied for its right of way a strip of land containing 2.07 acres. Judgment is demanded by plaintiff for the restoration of the whole of said land and for the damages heretofore mentioned.

In due time defendant filed its answer, wherein it denied generally the matters set forth in plaintiff's complaint, and alleged that in the month of May, 1908, it took possession of the strip of land containing 2.07 acres and constructed an electric railway line thereover in pursuance of a written agreement entered into by plaintiff and defendant, by the terms of which instrument plaintiff donated to defendant a perpetual right of way across said strip of land; that the conditions prescribed in said agreement were faithfully observed, and that the possession of said premises and the construction of said railway line thereover was with the knowledge and consent of plaintiff; that since the summer of 1908 defendant has operated passenger and freight trains across said land, and has since continued to operate its line of railway as a common carrier, in the transaction of state and interstate business; that, if ejected from said premises it will be compelled to abandon its railway line and the business thereon, with a great detriment to the public interest, and it is therefore an absolute necessity that said line of railway remain continuously in operation and be maintained across the premises of plaintiff, and that the one chosen is the only route across said premises over which defendant can operate its line of railway. The issues were concluded by a reply containing a general denial of the affirmative defense asserted by defendant.

Upon the trial of the case the jury rendered a verdict to the effect that plaintiff was entitled to the possession of the whole of the property described in plaintiff's first pleading, and awarded damages to plaintiff in the sum of $3,000. Following the entry of the judgment, defendant effected this appeal, assigning numerous errors, the significant ones of which will be considered in the opinion.

Carey &amp Kerr and Harrison Allen, all of Portland, for appellant.

Wilbur & Spencer, of Portland, for respondent.

McNARY, J. (after stating the facts as above).

The first and most important question to be determined arises from the contention that plaintiff has not the legal estate and right to possession of the premises as required by law to authorize ejectment. Except as modified by our statute, the common-law principles pertaining to ejectment are applicable. Upon referring to the statute, we note section 325, L. O.L which reads: "Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action at law. Such action shall be commenced against the person in the actual possession of the property at the time, or if the property be not in the actual possession of any one, then against the person acting as the owner thereof." Obviously this section of the Code is substantially an affirmation of the principles of ejectment as known to the common law. Confessedly, at the time defendant entered upon the land, plaintiff was in possession thereof by direction of the legal owner from whom plaintiff had a contract of purchase, which, omitting the description of the premises therein contained, recites: "Know all men by these presents, that I, Edward D. Kingsley, am held and firmly bound unto A.L. Mills in the sum of thirty thousand dollars to be paid to the said A.L. Mills, his executors, administrators or assigns, for which payment well and truly to be made I bind my heirs, executors and administrators firmly by these presents. Sealed with my seal and dated the 16th day of April, A.D. 1906. *** The conditions of this obligation are such that if the above-bounden obligator shall, on or before the 16th day of April, A.D. 1911,...