Maginnis v. Knickerbocker Ice Co.

• Decision Date: 17 December 1901
• Citation: 112 Wis. 385,88 N.W. 300
• Parties: MAGINNIS v. KNICKERBOCKER ICE CO. ET AL.
• Court: Wisconsin Supreme Court

112 Wis. 385

88 N.W. 300

MAGINNIS

v.KNICKERBOCKER ICE CO. ET AL.

Supreme Court of Wisconsin.

Dec. 17, 1901.

Syllabus by the Judge.

1. If a person conveys land to another stipulating that the title shall revert to him upon a failure of such other to fulfill certain conditions specified, a breach of the condition occurs and such person makes re-entry of the property or does something equivalent thereto for the purpose of reclaiming the same pursuant to the terms of the grant, in the absence of any equity preventing the legal effect of such facts the title to such property will thereby become revested in such person as absolutely as it was before such conveyance was made.

2. In the circumstances stated, the grantor, having reclaimed the property, may invoke judicial remedies in respect thereto, pleading his title in general terms the same as if no disturbance thereof had occurred by reason of the grant upon condition.

3. If a person conveys property to another, coupled with a condition the breach of which will, if taken advantage of, cause the title to revert to him, the condition being to secure the payment of money, or the performance of an obligation the breach of which can be fairly measured in money by some established rule, the particular thing to be done or the particular time of the doing thereof not being made essential and of the very essence of the contract, under some circumstances a court of equity, by an arbitrary rule of construction peculiar to that jurisdiction, may say the parties did not intend the full effect of their language, but purposed to have the condition stand as security for the performance of the obligation or the payment of an equivalent in money.

4. By the arbitrary rule referred to, contracts may be judicially made to read contrary to the literal or reasonable meaning of the language thereof, measured by ordinary rules for judicial construction, and then enforced according to the intention of the parties as judicially declared.

5. The rule of construction above indicated applies to prevent a forfeiture where the circumstances are such as to fall within the jurisdiction of equity and the person seeking the benefit thereof is not guilty of having willfully or inexcusably violated his obligation.

6. The beneficiary of a condition in the conveyance of property, for the breach of which the title thereto may revert to him, may lose the benefit thereof by conduct rendering it inequitable for him to insist upon the forfeiture as stipulated.

7. Mere silence is not sufficient to waive a forfeiture; but silence on one side and conduct in good faith relying thereon on the other, whereby such other is placed in such a situation that he will be greatly damaged if the apparent attitude of his conditional grantor be changed effectively, will bind such grantor as a waiver of the benefit of the condition.

8. Mere silence will not operate as a waiver of the benefit of a condition in case of an intentional breach thereof, though the conditional grantee incur expense which would operate to his prejudice if the grantor were thereafter permitted to insist upon the forfeiture.

9. The establishment of a railroad as a purely private enterprise cannot be legitimately aided by the power of eminent domain.

10. The doctrine, that if a railroad company takes possession of land for a public way, the owner thereof not objecting, the latter will be presumed to have consented thereto and impliedly agreed to accept a just compensation therefor and consented to rely upon the statutorymethod of obtaining the same, has no application to a case where the rights of the parties are defined by a written instrument.

11. If a railway corporation takes possession of land for a private purpose, its right to do so resting in a grant by the owner thereof, and it subsequently loses that right by forfeiture to such owner, it cannot thereafter defy such owner and continue to enjoy his property because it might successfully proceed in good faith to acquire it for a public purpose.

Appeal from circuit court, Racine county; Frank M. Fish, Judge.

Action by Nellie Maginnis against the Knickerbocker Ice Company and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Cassoday, C. J., dissenting.

Action to restrain a continuous nuisance. The complaint states, in substance, that plaintiff was the owner in fee simple and in possession of certain lands described, situated in Racine county, Wis.; that defendants constructed a spur railroad track thereon, leading from the main track of the Chicago, Milwaukee & St. Paul Railroad Company southeasterly of said land, in a northwesterly direction to the boundary line thereof, and intends to enter upon and permanently occupy said premises for said spur track, and to operate railway freight trains over the same without permission of plaintiff or having first acquired the right to do so. The defendant Knickerbocker Ice Company answered, denying the allegations of the complaintas to the title and possession of the premises in dispute and alleging title and right of possession in itself, and that such possession was exclusive except that the defendant railway company possessed a license to maintain a railway track over the same for the purpose of reaching ice industries operated by said ice company; that the railway track had been maintained and operated continuously for more than three years before the commencement of the action, by said railway company, as a part of its public railway system. The railway company answered substantially the same as the ice company.

On the trial plaintiff admitted that the railway track had been maintained and operated for more than three years before the commencement of the action, but claimed that it was so maintained and operated solely for use of the defendant ice company. The following facts were established by the evidence: December 15, 1893, Frederick Uhen, under whom both plaintiff and defendants claim title, conveyed to Thomas Boyle the 33-foot strip of land across a portion of section 34, town 3, range 19, described in the complaint, out of a tract of land owned by him, for a right of way for a railway track leading from the main track of the Chicago, Milwaukee & St. Paul Railroad to certain ice houses owned by the grantee and his associates. The conveyance was made upon conditions expressed therein as follows: “Provided that said second party inclose said premises herein conveyed with a good, legal and sufficient fence and forever maintain the same, and provide a suitable crossing in said strip at a point to be designated by the first parties, and to maintain gates in the fences at such crossing, and to build and maintain suitable culverts at the points where ditches now cross said premises, then this deed shall remain of full force and effect; but if at any time said grantee shall suffer the above conditions to be broken, then said described premises shall revert back to said first parties, their heirs or assigns.” Thereafter Boyle leased to the defendant railway company the center 17 feet of said strip of land and contracted with such company to construct a spur track thereon for the exclusive use of himself and his associates in the operation of their ice industry. A track was constructed accordingly, Boyle and his associates preparing the roadbed and the railway company furnishing the ties and rails and putting the same in place. While such work was in progress, Uhen made complaint to Boyle and others engaged therein, because no provision was being made for putting in culverts. No attention was paid to his complaints other than to suggest to him that culverts were not necessary. Ditches were made on either side of the strip, and the cross drainage ditches, agreed to be preserved by culverts under the track, were connected with such side ditches so that the water would flow through them off from plaintiff's land. There was delay in putting in the farm crossing, but it was finally put in and accepted. Soon after the construction of the spur track the rights of Boyle in the land, by mesne conveyances, became vested in the defendant ice company. The condition in respect to fencing the land was never performed. Uhen made complaint as to that on several occasions, at one time giving notice that the title conveyed by him could be reclaimed because of neglect to build the fence. During the summer of 1899, upon Uhen complaining about the failure to build the fence, he was promised that the premises should be inclosed after harvest time of that year. He acquiesced in that. In November, thereafter, plaintiff became the owner of the land, by conveyance from Uhen, out of which he conveyed the premises in controversy. Thereafter, with knowledge of and without protest from Uhen, the defendants fenced that part of such premises leased to the railway company. Thereafter, on January 4, 1900, Uhen went upon the strip of land for the purpose of reclaiming title thereto for nonperformance of the conditions of the deed. He then declared in the presence of several persons the purpose of his entry, and constructed fences across the ends of the strip so as to exclude all comers therefrom. He then conveyed the land to plaintiff, who thereafter removed the side fences of the 17-foot strip, making the entire 33-foot strip a part of her inclosure. The railroad company did not construct, operate or intend the spur track for public use, but established it for the exclusive use of the owners of the ice industry served by it.

At the close of the trial the plaintiff's attorneys requested the court to find facts in accordance with the foregoing, presenting written findings to that effect, which request was refused. A decision was rendered for defendants, the findings of fact being to the effect that the spur track was constructed and operated for public purposes; that the defendant ice company was the owner and entitled to the possession of...