Memphis & Little Rock Railroad Company As Re-Organized v. Organ

• Decision Date: 14 October 1899
• Citation: 55 S.W. 952,67 Ark. 84
• Parties: MEMPHIS & LITTLE ROCK RAILROAD COMPANY AS RE-ORGANIZED v. ORGAN
• Court: Arkansas Supreme Court

55 S.W. 952

67 Ark. 84

MEMPHIS & LITTLE ROCK RAILROAD COMPANY AS RE-ORGANIZED v. ORGAN

Supreme Court of Arkansas

October 14, 1899

Appeal from Crittenden Circuit Court in Chancery, JAMES E. RIDDICK Judge.

Reversed and remanded.

Rose Hemingway & Rose, for appellants.

The burden of proof, under the statute of limitations, was on the plaintiff. 21 Ark. 386; 43 id. 139. The bill and the amended bill did not state a case within the period of limitation hence the suit should have been dismissed, regardless of what the evidence showed. 16 Ark. 169; 20 Ark. 200; 24 Ark. 390; 9 Pet. 415. The entry of the Federal troops did not affect the continuity of appellant's possession. 20 S.W. 443; 24 Ark. 392; 83 Am. Dec. 499. Possession, once established, is presumed to continue until the contrary is shown. 34 Ark. 102; 30 S.W. 509; 38 N.E. 620. There was no such entry as would break the continuity of appellant's possession. 53 Mich. 461; 47 N.W. 657; 3 Washb. R. Prop. 129, 486; 2 So. Rep. 24; 14 Act. 762; 51 N.W. 295. The mere failure to rebuild the track after the war was not an abandonment. 29 A. 379; 28 A. 860; 18 N.E. 830. Plaintiff is barred by laches extending over about 22 years. 61 Ark. 527; id. 575; 14 Ark. 62; 22 id. 272; 19 id. 16; 55 id. 93; 60 id. 55. The agreement under which the railroad company entered the lands gave them an easement therein, which became indefeasible on their building the road. 37 So. Rep. 303; 19 Ark. 24. It must be presumed that, after the lapse of so great a time, the contract not being produced, appellant satisfactorily complied with its terms. Lawson, Presumptive Ev. 308, 406, 407, 413, 419. This being true, the plaintiff had no cause of action, and the demurrer should have been sustained. 29 N.Y. 634; 13 Am. & Eng. Enc. Law, 547; 1 Wash. R. Prop. p. 630, § 36. As the terms of agreement are not set out, the presumption is that they justified the railroad company's action. 46 Ark. 131; Lawson, Presumptive Ev. 93; 32 Ark. 764.

Wm. M. Randolph & Sons and T. B. Turley, of Tennessee, for appellee.

Upon the former appeal of this case, this court decided, in effect, that the action was not barred by limitation. 51 Ark. 273-4. The railroad's right of way over appellees' land was not adverse to their title. 5 Pickle (89 Tenn.), 294; 54 Ark. 608. As to burden of proof under the statute of limitations, see, Buswell, Lim. § 236; 43 Ark. 504. Where the complaint fails to show the date at which the cause of action accrued, or leaves same in doubt, the defendant must plead the statute. 19 Ark. 16; 56 Ark. 399-401; 28 Ark. 27; 31 Ark. 684; 34 Ark. 164. The facts in the record being such as to entitle plaintiff to relief, the court should have granted it, whether prayed in the complaint or not. 56 Ark. 399-401. Certainly, the statute of limitations did not run against the heirs during the life estates of their fathers. 22 Ark. 567; 35 Ark. 84; 60 Ark. 74. If any statute of limitations applies to this case, it is the seven year statute. 51 Ark. 270-271. Plaintiff had a right to the full value of the land taken, at the time it was taken, without reference to the manner, extent or time of the use. 51 Ark. 266; 51 Ark. 324; 51 Ark. 330 54 Ark. 141; 49 Ark. 381. As appellees had no remedy provided for the ascertainment of the compensation and damages due them for their land, and no remedy provided to recover rents during its occupation and use, no statute of limitation could run against them in respect thereto. 87 Tenn. 175-178; 16 Ark. 181; Buswell, Lim. §§ 128, 131-132; Wood, Lim. § 117; Ang. Lim. §§ 54, 488; 10 Ark. 228; 25 Ark. 462; 32 Ark. 131, 151-153. The original possession, being under agreement, and not being shown to have changed, cannot ripen into a title. 35 Ark. 500; 40 Ark. 366; 42 Ark. 118; 57 Ark. 157, 158; 43 Ark. 494; 4 How. 289; Wood, Lim. § 260; Sedg. & Wait, Tr. Tit. Land., §§ 736, 751; 57 Ark. 526; 58 Ark. 142; 57 Ark. 97; 33 Ark. 633; 43 Ark. 504, 520. Separate trespassers or separate acts of trespass cannot be connected, for the purposes of the statute of limitations. 48 Ark. 277; 49 Ark. 266, 276; 22 Ark. 79; 24 Ark. 371, 390; Wood, Lim. § 271; 57 Ark. 157-158; 27 Ark. 77. Even if appellant claims to hold in succession to the title of the original company, since it held by contract, appellant's possession is not adverse. The relation of landlord and tenant is implied from their taking as such succession to the original company. Lewis, Em. Dom. § 621; Tay. L. & Ten. §§ 436-437, 629, 705-706; Wood's L. Ten. §§ 3, 236; Wood's Lim. § 265; 35 Ark. 547; 43 Ark. 469, 494; 43 Ark. 504, 519-521; 56 Ark. 485-493; 40 Ark. 366; 50 Ark. 554; 57 Ark. 526. Mere occupancy without intent to claim title does not confer title. Wood, Lim. § 256, p. 513; Buswell, Lim. § 237; 2 Wall. 328; 59 Ark. 626; 115 U.S. 407. The proper measure of compensation due appellees was the value of the land, just as it was, and not its rental value for the time it was occupied by the appellant. 51 Ark. 266; 51 Ark. 324; 51 Ark. 330; 49 Ark. 381; 54 Ark. 141; 41 Ark. 202; 98 U.S. 403.

Rose, Hemingway & Rose, for appellants, in reply.

After appellant's title by limitation was perfected, it owed appellees no rents. 20 Ark. 508; 38 Ark. 181; 20 Ark. 542; 34 Ark. 534; 50 Ark. 140; 23 Ark. 147. The former appeal of this case did not decide the question of limitation. 51 Ark. 274. The decision on the former appeal is not binding on this appeal as to any point not then considered. 52 Ark. 473; 14 id. 132. See further as to burden of proof on limitation question: 6 Ark. 381; 27 Ark. 344; 47 Ark. 172; Abb. Tr. Ev. 822; 2 Greenl. Ev. § 431. The entry and holding of appellant were adverse. 43 N. J. Law, 605; S. C. 11 Am. & Eng. R. Cas. 509; 129 N.Y. 252; S. C. 50 Am. & Eng. R. Cas. 292; 51 F. 932; 90 Tenn. 157; S. C. 16 S.W. 64; 80 Ga. 776; 50 Ark. 250; 59 Tex. 29; 24 F. 539. As the bill shows no claim within the statutory period, it shows no cause of action. 55 Ark. 92; 20 Ark. 200; 1 Dan. Ch. Pl. & Pr. 559; Story, Eq. Pl. § 484. Appellant has a right to tack its possession to that of its predecessors in title or possession, if that possession has been continuous. 20 Ark. 359; id. 508; 40 Ark. 108, Wood, Lim. § 272. To preclude this, a break in possession is essential. 23 Ark. 340. No exceptions by appellant were necessary to the report of the master, because of the agreement of counsel reserving all questions of law. Such agreements are to be liberally construed. 7 Pet. 254; 54 Ark. 346; 150 U.S. 591; 45 Ark. 33; 120 U.S. 777; 3 Burrow, 1477; 8 How. 257. Their effect is to waive all technicalities. 1 Enc. Pl. & Pr. 391, 401; 96 Am. Dec. 748, and note; 144 Mass. 546; 5 Allen, 307; 129 Mass. 32; 11 Pick. 310; 8 Allen, 349; 32 Me. 102; S. C. 52 Am. Dec. 642; 5 Greenl. 140; S. C. 17 Am. Dec. 211. That, on the evidence, the claim is barred, see: 51 Ark. 271; 50 Ark. 53; 47 Ark. 431; 58 Ark. 503. In respect to the statute of limitations, there is no difference between this and any other case. 115 Ind. 22; S. C. 17 N.E. 171; 37 Md. 237; 22 Wis. 288; 39 Miss. 394; 23 Conn. 421. The plaintiff's cause is barred by laches. 3 Wash. R. Prop. 53; *449; 19 Ark. 16; 55 id. 92; 94 U.S. 806; 15 N.E. 256; 25 Am. & Eng. R. Cas. 83. A general demurrer raises this question. 120 U.S. 387. When laches is apparent, plaintiff must specifically excuse it in his bill. 124 U.S. 183. Plaintiffs' silent assent to the building of the tracks, etc., estops them. 36 Ark. 688; 33 Ark. 465; 55 Ark. 85; 60 Ark. 55.

HUGHES, J. RIDDICK, J., did not sit in this case.

OPINION

HUGHES, J.

This is the second appeal in this case. The opinion in the first appeal is reported in 51 Ark. 235 (Organ v. Memphis & Little Rock Railroad Co.), where many of the facts are set out, and many questions of law involved in the case are discussed and settled, so that in the present appeal mainly questions of fact are involved. The question of law involved is the statute of limitations, and this depends upon the evidence.

In the former opinion at page 267, 51 Ark., the court, through Judge Battle, said: "But it is insisted that appellee is not responsible for the debts of its predecessors. This is true. While it did not assume their personal liabilities, it could only take from them by purchase what they had a right to convey. As said in Lewis on Eminent Domain, sec. 621, 'no rights can be acquired in private property under the power of eminent domain except subject to the duty of making just compensation therefor. Consequently, the party originally taking or occupying the property cannot transfer to another by mortgage, lease or otherwise, any right in the property except subject to the same duty. In other words, the owner's claim to just compensation is paramount to any right which can be derived by or through the party making or seeking the condemnation.' " This means simply that the predecessors of the appellant here could convey to appellant, and that it could take from them, no rights the predecessors did not have. If the property received by appellant from its predecessor was subject to the right of the appellees in this case to be compensated for the damages sustained by them by the wrongful appropriation of their property by the predecessors of the appellant, it was still liable after its conveyance to the appellant. The court on the first appeal also said: 'The possession of the railroad company, although wrong in the beginning, may ripen into a right by virtue of the continuance of the wrong for the requisite statutory period. As seven year's adverse possession, under the statutes of this state, will bar an action to recover lands, it will be sufficient to bar the action to enforce the claim of the owner against the land or to enjoin the railroad company from using it until just compensation is...