Levi Bowers v. The Atchison

• Decision Date: 11 July 1925
• Docket Number: 26,191,26,022
• Citation: 119 Kan. 202,237 P. 913
• Court: Kansas Supreme Court
• Parties: LEVI BOWERS (ARTHUR MARKS, substituted Plaintiff) et al., Appellees, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

237 P. 913

119 Kan. 202

LEVI BOWERS (ARTHUR MARKS, substituted Plaintiff) et al., Appellees, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

Nos. 26,022, 26,191

Supreme Court of Kansas

July 11, 1925

Decided July, 1925.

Appeal from Douglas district court; HUGH MEANS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAYS--Reversion on Vacation--Adjoining Owners. A forty-foot highway was established across a tract of land. The north line of the highway was twenty-five feet south of a railroad right of way. The railway company purchased the twenty-five-foot strip for use in connection with operation of the road and received a general warranty deed in the usual form. The deed in fact bounded the land on the highway, but without mentioning it, and stated the quantity of land conveyed. The deed was duly recorded, and afterwards the highway was vacated. Held, the grant extended to the center of the highway, subject to the public easement, and when the highway was vacated the railway company was owner of the unencumbered fee of the moiety of the way by the same title and to the same extent as of the twenty-five-foot strip.

2. ADVERSE POSSESSION--Hostile Character of Possession--Privies by Deed. After the highway was vacated the grantor and those holding under him continued in open, notorious and exclusive possession of the land which constituted the way, claiming to own it, and they paid taxes upon it. Held, the facts stated do not show that the statute of limitations barring recovery of the land by the railway company commenced to run, or that the possession was adverse to the railway company.

William R. Smith, Owen J. Wood, Alfred A. Scott, Alfred G. Armstrong all of Topeka, and Raymond F. Rice, of Lawrence, for the appellant.

A. B. Mitchell and J. H. Mitchell, both of Lawrence, for the appellees.

OPINION

BURCH, J.:

The action was one to enjoin the railway company from using a strip of land twenty feet wide constituting the north half of a vacated highway, which before it was vacated adjoined land of the company purchased for railroad purposes. The court found that when the highway was vacated title to the strip vested in the company, but that title had been lost by adverse possession. Judgment was rendered accordingly. The railway company appeals on the ground the last finding was erroneous, and plaintiff cross-appeals on the ground the first finding was erroneous.

The land in controversy is adjacent to defendant's Lake View station. At the place in question the railway company's right of way was originally fifty feet in width. In the center was laid the main track, between Kansas City, Mo., and Topeka, Kan. North of the main track the telegraph line of twenty-five wires was constructed. South of the main track a passing track was laid. At the east end of the strip in controversy is a highway running north and south across the right of way. The Lake View station is on the east side of this highway and on the north side of the right of way. East of the station the railway company has a right of way 200 feet in width. The land south of the right of way and west of the north-and-south road belonged to Eben Baldwin. In April, 1897, a forty-foot highway was established on Baldwin's land parallel with and 25 feet from the south boundary of the right of way. In August, 1897, the railway company purchased the twenty-five foot strip lying between the highway and the right of way from Baldwin, who gave a general warranty deed in the usual form, which was duly recorded. In December, 1897, the highway was vacated.

When the highway was established it constituted an easement for the benefit of the public, and the fee of the land appropriated for the way remained in Baldwin. The common law on the subject is in force in this state, and the doctrine that a private person may have the fee of a highway was recognized and applied in an interesting case found in the Year Books of 17 Edward III, A. D. 1343. John Hacklut distrained for rent in arrears, in the high street of the town of Huntingdon. John de Brandestone and others recaptured with force and arms the two horses harnessed in a cart which has been seized. Hacklut brought an action of rescous, and the declaration was that the distraint was made within Hacklut's fee. The case came on for hearing in the court of common pleas, before the chief justice, Stonore, and Justices Hillary and Shardelowe. Grene represented the plaintiff and Seton the defendants. The report of the case reads in part as follows:

"Seton. The place of taking is the highway, which is out of your fee; and you would have taken the horses, and we would not suffer it; judgment whether tort, &c. Grene. Within our fee; ready, &c. Seton. The taking was effected in the highway, and so out of your fee; ready, &c. Grene. That issue is double: one that the taking was effected in the highway so as to abide judgment in law whether the highway can be within our fee; the other that the place is out of our fee, which falls under the head of fact. HILLARY to Seton. Do you think that a highway cannot be within his fee? Certainly it can: for if I enfeoffed you of a manor to hold of me, through which manor there is a road, and a highway, I should distrain in that highway for my services, if it were not forbidden by the statute (52 Hen. III, Marlb., c. 15) so that I can have a fee there. To this STONORE and SHARDELOWE agreed." (Trinity Term, No. 31, Year Books 17, Edw. III, p. 574, Chronicles, &c., edited and translated by Pike.)

As the case cited shows, ownership of the land beneath a highway was a matter of much importance in early times. Not only might the owner distrain in the way, but he was entitled to all the profits--soil, stone, trees, wood, grass--and it was finally established that he could bring trespass for injury and ejectment for possession. When ways commenced to mark boundaries between holdings, the presumption was that a way forming a boundary had originally been established equally on the land of each proprietor, and consequently that each had the fee usque ad medium filum vioe. The presumption was rebuttable, however, by proof that the way was wholly or chiefly on the land of one.

The presumption of ownership to the middle of the road was applied to conveyances, and a deed of general words bounding land on a highway, or granting land bounded on a highway, presumptively carried title to the center of the way. This presumption was not rebuttable in precisely the same manner as the presumption that the way rested equally on the land of the adjoining properties. If the way was wholly upon the land of one, the deed of the other could not convey any part of the soil beneath the way, and the extent of his fee could be shown; but if the proprietor having title to the land under the way conveyed, his deed carried title to the middle of the way if he owned that far. To avoid this consequence, it was necessary for him to exclude the soil under the way from the conveyance, and the question became one of interpretation of the conveyance. The deed was to be interpreted most favorably to the grantee. The probability that the grantor would purposely deprive his grantee of the benefit of the servient soil, and reserve what in the great majority of instances would be of no use to the grantor, was always slight. Experience revealed that separate ownership of long, narrow strips of land distinct from the territory adjoining on each side was prolific of private dispute and public disturbance, and public policy became an important factor in the interpretation. Therefore it became settled doctrine that a deed of land abutting on a road passes a moiety of the road, unless intention not to do so be clearly indicated.

Such was the common law of England, and its adoption in this country is well disclosed by the treatment of the subject of highways in the third volume of Kent's Commentaries, which appeared in 1828. The following extract is pertinent to the present controversy:

"The established inference of law is, that a conveyance of land bounded on a public highway carries with it the fee to the center of the road, as part and parcel of the grant. The idea of an intention in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed. It would be contrary to universal practice; and it was said, in Peck v. Smith, 1 Conn. 103, that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration, or something equivalent thereto, to sustain such an inference; and it may be considered as the general rule that a grant of land bounded upon a highway or river carries the fee in the highway or river to the center of it, provided the grantor at the time owned to the center, and there be no words or specific description to show a contrary intent." (3 Kent Com. 433.)

It was inevitable there should be some divergence, both of statement and application of principle, while the American courts were weaving the common law into the fabric of their own legal systems, and the process of adaptation was sometimes affected by statutes relating to highways; but Chancellor Kent's statement of the law has been generally approved.

The common law on the subject under consideration is in force in this state, except as modified by statute. (Tousley v Galena M. & S. Co., 24 Kan. 328.) The only statutes which need to be noticed are those that place the fee of city streets in the county. The subject of who owns the fee of a highway becomes important when the highway is vacated. At common law, when the public...