Kremer v. Chi., M. & St. P. Ry. Co.

• Citation: 52 N.W. 977,51 Minn. 15
• Court: Supreme Court of Minnesota (US)
• Decision Date: 22 July 1892
• Parties: KREMER v CHICAGO, M. & ST. P. RY. CO.

51 Minn. 15

52 N.W. 977

KREMERvCHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

July 22, 1892.

(Syllabus by the Court.)

1. Where a railway company enters upon land and constructs its road under the mere license of the owner of the land, such license is a protection for acts done under it; but upon its revocation the company may be ejected from the premises, unless the right to continue to occupy the same is acquired by purchase or condemnation.

2. The landowner's right of action is not impaired by mere inaction or delay in bringing suit, within the statutory time.

3. In condemnation proceedings, the owner is entitled to have his compensation in damages assessed for the injury to the entire tract owned by him, of which the land appropriated by the company is a part, as of the time of the assessment of damages.

4. It is for the jury to determine the extent of the injury as affecting different portions of such track.

5. Where, in an action for the recovery of land unlawfully occupied by a railway company, the latter, in its answer, asks for an assessment of the damages for the appropriation thereof, under the statute, it is entitled to abandon or dismiss such application at any time before the final submission of the case. But where it fails to assert such right, and asks to amend its answer, or for leave to dismiss or abandon such application for an assessment of damages, and the motion is treated and disposed of as one addressed to the discretion of the court, it will be so treated in this court, and the decision of the trial court will not be interfered with, except in case of an abuse of discretion.

Appeal from district court, Faribault county; SEVERANCE, Judge.

Ejectment by Peter Kremer against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

A. C. Dunn, (John W. Cary and H. H. Field, of counsel,) for appellant.

Daniel Buck and D. F. Morgan, for respondent.

VANDERBURGH, J.

The plaintiff alleges that he is, and for more than three years has been, the owner of a tract of land in Blue Earth county, containing upwards of 1,300 acres, which is traversed by the defendant's railway. The railroad was constructed upon and over the land before plaintiff acquired title; but it never obtained the lawful right so to do, by condemnation proceedings or otherwise, and has never paid any compensation for the land occupied by it, or for the damages caused by the construction and operation of its railway thereon. He therefore seeks by this action to recover possession, to eject the defendant from the premises, and for damages caused by the occupation thereof. The answer takes issue upon the allegations of plaintiff's ownership, and also alleges “that the predecessors in interest of the defendant entered upon and built the railroad over and across the said lands with the full knowledge, consent, and acquiescence of the then owners of the same, and that, ever since its purchase and operation of the said railroad, it has continued to use and occupy the said strip of land for its railway purposes until the commencement of this action, without notice from the plaintiff or other persons that its use and occupation thereof was in any manner unlawful, and without objection from the plaintiff or other persons; that the piece of railroad built and constructed as aforesaid is a part of its line of railway from Wells to Mankato, and is necessary to the proper enjoyment of its rights and franchises, and to the discharge of its duty to the public as a carrier of freight and passengers.” It also alleges that it is ready and willing to make compensation for the damages arising from the appropriation of the land in question, and therefore asks that they be ascertained as provided by the statute by the jury in this action, if the plaintiff on the trial shall establishhis right to recover the said strip of land.

1. The evidence sustained the allegations of plaintiff's title and ownership, and there was no evidence in the case tending to show that defendant's occupancy of the premises was lawful, except that the same was by the license, express or implied, of the grantors of the plaintiff. If the original entry or subsequent occupancy of the premises, to the time of plaintiff's purchase, was by the license of the grantors of the plaintiff, such license is a protection for any acts done under it; and in any event the plaintiff would have no right of action for use and occupation or trespasses committed by defendant in the construction or operation of its road thereon prior to his purchase, unless he had acquired such right by assignment. It did not pass by the conveyance of the land. But such license, if any there was, was subject to be revoked at any time by the licensor; and thereafter the defendant would become a trespasser, and the landowner would be entitled to his remedy either in trespass or ejectment, as he might be advised. The sale and conveyance of the land to the plaintiff was by itself a revocation of any previous license, and the plaintiff had a right immediately thereafter to bring his action to recover the possession. Eggleston v....