Lithgow v. Pearson

• Court: Colorado Court of Appeals
• Writing for the Court: CUNNINGHAM, P.J. CUNNINGHAM, P.J.
• Citation: Lithgow v. Pearson, 25 Colo.App. 70, 135 P. 759 (Colo. App. 1913)
• Decision Date: 14 July 1913
• Parties: LITHGOW et al. v. PEARSON.

135 P. 759

25 Colo.App. 70

LITHGOW et al. v. PEARSON.

Court of Appeals of Colorado

July 14, 1913

On Rehearing October 14, 1913

Appeal from District Court, Denver County; George W. Allen, Judge.

Action between Bear Pearson and Lina Lithgow and another to determine the right to the proceeds of certain property condemned for public use. Judgment for Pearson, and Lithgow and another appeal. Reversed and remanded.

Thomas B. Stuart and Charles A. Murray, both of Denver, for appellants.

Halstead L. Ritter, of Denver, for appellee.

CUNNINGHAM P.J.

In the view we take of this case it is only necessary to determine one of the contentions debated in the briefs and on oral argument, viz., whether or not, under the statutes of our state, a right of way acquired by a railroad corporation by condemnation reverts to the original owner of the fee upon the same being abandoned by the corporation. Wherever the word "abandonment" appears in this opinion we use it in the sense that the condemner, acquiring title to the land by condemnation for a public purpose, has ceased to use it for such purposes. It is not necessary, and we shall not attempt, to carefully or fully state all of the facts presented by the record in this case. It is sufficient to say that the appellee, Bear Pearson, and the two appellants were made defendants in a condemnation proceeding brought by the city and county of Denver for the purpose of acquiring a right of way for a street over certain lots in which the two appellants owned an interest, and in which the said Pearson claimed an interest, by virtue of certain quitclaim deeds. Long prior to 1909, when the city filed its petition in condemnation, the Denver Circle Railroad Company had condemned a right of way across the lots, which, after the road had been operated for a time, was abandoned and the tracks taken up, and for many years before the proceeding brought by the city, no attempt had been made by the railroad company, or any successor, to use the old railroad right of way for public purposes of any sort. After the abandonment of the right of way by the railroad company, by certain mesne conveyances Pearson became vested with whatever title, if any, the railroad company had at the time of said conveyances, to the narrow strip of land which it had acquired by the early condemnation proceeding. If upon the abandonment of the right of way by the railroad company the title reverted to the fee owners, then Pearson had and has no title whatever, and the judgment must be reversed. Appellants urge other reasons than that of reversion to defeat any claims that Pearson might have in and to the land, but it is not necessary, in the view we take, to refer to them.

The right of way which the railroad company originally condemned was embraced within the much wider strip which the city sought to, and did, condemn for a street. The condemnation proceeding brought by the city resulted in a decree or order awarding it title to the entire strip which it sought to condemn for street purposes, and the controversy here between the appellants and the appellee is over the distribution of the money which the city has paid in to the clerk of the court, appellants contending that Pearson has no title whatever, and that the whole amount should be paid over to them, while Pearson contends that he owned, by reason of the conveyances aforesaid, the old railroad right of way, and therefore is entitled to participate in the fund paid in to the registry of the court by the city.

The eminent domain statutes and the provisions of the Constitutions of the various states on that subject are far from uniform. Whether or not the Legislature of a state (there being no restriction in the Constitution) possesses authority to provide for the taking of an undeterminable fee title to land in a condemnation proceeding is a question which we are not called upon to determine. The authorities are not entirely harmonious on this point; but, the doctrine that eminent domain statutes must be strictly construed is pretty uniformly adhered to in all the states. 15 Cyc. 1018; 10 Am. & Eng.Enc. of Law (2d Ed.) 1068; Pueblo v. Rudd, 5 Colo. 272.

Section 2420, R.S.1908, provides that after the value of the land in a condemnation proceeding shall have been determined by certificate or verdict of a jury, the court or judge "shall make and cause to be entered in its minutes a rule, describing such lands, real estate or claims, in manner aforesaid, such ascertainment of compensation, with the mode of making it, and each payment or deposit of the compensation as aforesaid, a certified copy of which shall be recorded and indexed in the recorder's office of the proper county in like manner and with like effect as if it were a deed of conveyance from the said owners and parties interested, to the proper parties. Upon the entry of such rule the said petitioner shall become seised in fee except as hereinafter provided, of all such lands, real estate or claims described in said rule as required to be taken as aforesaid, and may take possession of, and hold and use the same for the purposes specified in said petition: *** Provided, any such right of way shall never give the petitioner any right, title or interest in any vein *** existing in the premises condemned." The controversy here, it will be readily perceived, turns upon the nature or character of the title which the condemner acquired under the statutory provisions just quoted. If, as appellee contends, the title vested by the decree of the court is a fee simple absolute, then, of course, the doctrine of reversion cannot be invoked by appellants. But if, as appellants contend, under the language of our statute the decree of the court vests but a qualified, or, more accurately speaking, a terminable fee, then upon the abandonment of the right of way, the condemner and its successors lost whatever title they had, and it reverted to the original owners. It is said by counsel for appellee that no Colorado case has so far squarely decided whether, under our statutes, the condemner takes a fee simple absolute title, or a terminable fee. With this statement we are disposed to agree. However, there are, as we think, helpful intimations in various cases that have been before our courts of review. The opinion in Great Western Ry Co. v. Ackroyd, 44 Colo. 454-456, 98 P. 726, upon a casual reading, might seem to sustain the contention made here by appellee, but we think a more careful reading will disclose little, if any, support for his view, and the same may be said of Colorado Central R.R. Co. v. Allen, 13 Colo. 229, 22 P. 605, cited and relied upon by appellee. In St. Onge v Day, 11 Colo. 368, 18 P. 278, a case that was before the Supreme Court Commission, and examined and adopted by the Supreme Court, there are intimations which at least tend to support the views advanced by appellants. On page 371 of 11 Colo., page 280 of 18 Pac., appears the following: "A railway right of way, as a general rule, necessarily carries with it an exclusive right for railway purposes." (Italics ours.) And, lest this qualifying phrase was not a sufficient warning to the bar, the court further said "It should not be inferred from what has been said that the railway company has the right to burden the property with any other or different use than that for which it was granted or acquired." But the applicability of the opinion in the St. Onge Case is made doubtful by the fact that the right of way there under consideration was a congressional grant to the railroad company, which, we believe, is never held to convey the fee.

In Smith Canal or Ditch Co. v. C., I. & S. Co., 34 Colo. 485, 82 P. 940, 3 L.R.A. (N.S.) 1148, Mr. Justice Campbell, speaking for the court, uses this language: "The petition in the condemnation proceeding says that the land sought to be taken was for a right of way for a ditch, and in its complaint here plaintiff states that in such proceeding it procured and obtained a right of way, and its estate in this strip is thus designated more than once." By italicizing the words "right of way," it is apparent that Justice Campbell regarded them as significant. While Justice Campbell was speaking of what the petition in the Smith Canal Case contained, the statute under which the proceeding in the instant case was brought also uses the phrase "right of way." Proceeding, Justice Campbell says: "Possibly it is not necessary that the rule itself should so provide, and the order here which was entered by the probate court did not purport to specify the title or interest which the petitioner sought to acquire. The language quoted is susceptible of the meaning that two sorts of estates are contemplated--one a fee, the other a mere right of way or easement. It is also susceptible of the meaning that the kind of a fee contemplated is not a technical fee for, by reason of the words following, the word 'fee,' is merely an estate or interest which gives to the party seeking to condemn the exclusive right of possession of the strip sought to be held during its continuance as a corporation, only for the purposes of constructing and operating a ditch; if so, an easement or mere right of way would satisfy that purpose. Considering the statute, then, as we should, as passing only such estate or interest as is reasonably necessary to accomplish the purpose in view, and bearing in mind that the petitioner asked only for a right of way, and taking the construction which, in its complaint, the plaintiff itself has made of its own right, we are of opinion that merely a right of way or easement was acquired, and such we hold is the extent of the plaintiff's interest in this strip." (Italics ours.) Four things would seem to appear from the last...