Lincoln v. Great N. Ry. Co.
| Decision Date | 03 January 1914 |
| Citation | 144 N.W. 713,26 N.D. 504 |
| Parties | LINCOLN v. GREAT NORTHERN RY. CO. |
| Court | North Dakota Supreme Court |
Evidence and pleadings examined, and held, that plaintiff has not established his right to an easement in a certain private crossing from the right of way of the defendant company; the complaint, answer, and evidence failing to show an adverse and exclusive possession to the said tract.
Since a railroad company has no right to grant any easement in its right of way inconsistent with its right to use same for railroad purposes, it cannot grant to the landowner an easement in a private way over its tracks.
Appeal from District Court, Grand Forks County; Templeton, Judge.
Action by N. R. Lincoln against the Great Northern Railway Company, a corporation. From judgment for defendant, plaintiff appeals. Affirmed.W. J. Mayer, of Grand Forks, for appellant. Murphy & Duggan, of Grand Forks, for respondent.
About the year 1881 the St. Paul, Minneapolis & Manitoba Railway was built from St. Paul to Winnipeg, passing through the village of Manvel in Grand Forks county, Dakota Territory and crossing the Turtle river about a mile north of the village. Between the town and the river a tract of land was owned by one Gould, who deeded a right of way 100 feet in width through the said tract, to the said railway company. At the same time, the railway company established a private crossing over the said railway and connected the two portions of the tract of land owned by Gould, severed by the line of the railway. Thereafter, the Great Northern Railway Company succeeded to the interest of the older railway company, and the plaintiff herein, through various deeds of conveyance, succeeded to the interest of Gould in all said tract of land lying west of said right of way. At the time of the building of the said private crossing, the grade was only two feet in height, and the crossing therefore presented but a slight grade. About the year 1908 the bridge over the Turtle river was replaced, and in order to render the same safe from floating ice was raised about four feet. As the said private crossing was located but 1,000 feet from the bridge, the grade of the railway was necessarily raised at the point of the crossing. This rise is given by the various witnesses to be about three feet above the old grade. The defendant company graveled the new crossing and improved the same as much as they possibly could, but, owing to the presence of a public highway along the east side of the railway, it was impossible to extend the grade far enough away from the railway to give as gradual an approach as had obtained prior to the said elevation.
Plaintiff brings this action in equity to compel the railway company to reduce the elevation of the tracks at the point of the crossing so as to present the same level and condition as had existed during the 20 years prior to the change. The complaint, after alleging the corporation of the plaintiff and the ownership of the land, alleges that the earlier railway company had granted to the said Gould, plaintiff's predecessor in interest, a private way appurtenant to their said land crossing the said strip of land owned by it and over its roadbed and railroad tracks, 15 feet in width and extending from the easterly boundary of plaintiff's land and the westerly boundary of the public highway; that immediately thereupon the railway company graded approaches, and has ever since maintained said private crossing; and that for more than 20 years the plaintiff and his grantors have enjoyed the actual and beneficial use of said crossing; and that said use has been open, notorious, peaceful, continuous, uninterrupted, and adverse, and was enjoyed with full knowledge and acquiescence of the said defendant; that the said grade did not exceed a height of two feet above the average level of the ground, and the said crossing was safe and convenient for use; that during the summer of 1908 the defendant wrongfully and unlawfully interfered with and obstructed plaintiff's right of way over said railway by raising said grade, thus rendering the said crossing extremely unsafe and difficult. Wherefore plaintiff demanded judgment that the said grade be declared a nuisance and lowered to its former level and condition. The answer of the defendant admits the corporation of the company and the ownership of the land by plaintiff and admits “that there has been a private crossing at or near the point described in the complaint for a great many years, but denies the allegations of said complaint in reference to the same having been interfered with, or obstructed by this defendant, and in this behalf alleges the fact to be that said crossing now is, and has been at all times, in proper shape and fit for use for crossing purposes.” Trial was had in the court below and resulted in a dismissal of the action. Plaintiff appeals and demands trial de novo in this court.
[1] 1. The first point to be settled in this case is one of interpreting the pleadings. Plaintiff insists that upon the admission of the answer, for the purposes of this trial, it conclusively appears that he has such an interest in the crossing aforesaid that arises to the dignity of easement in the land which cannot be interfered with by the defendant without bringing condemnation proceedings for that purpose. With this contention we cannot agree. Admitting all of the allegations in the complaint not specifically denied by the answer, it would only appear that the defendant company had built and maintained for the use of the plaintiff and his predecessors a private crossing over its tracks and across its railway, and that the same had been so maintained for a period of more than 20 years, under a grant from the older company.
It is plaintiff's contention that he has acquired some interest in the real estate itself, and this action is not for damages, but to enforce plaintiff's rights in the strip of land 15 feet in width which crosses the defendant's tracks. Appellant cites sections 4926-4928, R. C. 1905, in support of his contention. The said sections read as follows:
“Sec. 4926. Title by occupancy. Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will or succession.
Sec. 4927. Prescription. Occupancy for the period prescribed by the code of civil procedure or any law of this state as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all.
Sec. 4928. Titles to real property. All titles to real property vested in any person or persons who have been...
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...of acquiescence. Nowling, at ¶¶ 11, 14. [¶ 10] In Nowling, 2002 ND 104, ¶ 7, 646 N.W.2d 719, we cited Lincoln v. Great Northern Ry. Co., 26 N.D. 504, 511, 144 N.W. 713, 715 (1914) (on petition for rehearing), for the principle that a railroad had no right to grant an easement inconsistent w......