Nebraska Ry. Co. v. Culver
| Decision Date | 01 July 1892 |
| Citation | 52 N.W. 886,35 Neb. 143 |
| Parties | NEBRASKA RY. CO. v. CULVER. |
| Court | Nebraska Supreme Court |
1. Held, that the statute of limitations had not run in favor of the plaintiff.
2. That the question involved had already been determined in the case of Hull v. Railway Co., 32 N. W. Rep. 162, 21 Neb. 371, and 40 N. W. Rep. 280, 24 Neb. 740.
Appeal from district court, Lancaster county; CHAPMAN, Judge.
Petition by the Nebraska Railway Company against Charles J. Hull to enjoin the prosecution of certain ejectment proceedings. Defendant died, and Helen Culver was substituted. From a decree dismissing the bill, plaintiff appeals. Affirmed.O. P. Mason and C. E. Magoon, for appellant.
Lamb, Ricketts & Wilson, for appellee.
On the 30th day of September, 1885, Charles J. Hull commenced an action in ejectment in the district court of Lancaster county against the Chicago, Burlington & Quincy Railroad Company, Humphrey Bros. Hardware Company, and S. A. Brown & Co. to recover possession of lots 14, 15, 16, and 17, in block 70, of Lincoln. April 15, 1886, the defendant railroad company filed an amended answer, presenting the following defenses: (1) General denial. (2) Condemnation proceedings by the Burlington & Missouri River Railroad Company in December, 1879. (3) Ten-year statute of limitations. (4) That the Chicago, Burlington & Quincy Railroad Company, with its predecessors, the Burlington & Missouri River Railroad Company and the Nebraska Railway Company, had been in open, notorious, and exclusive possession of said lots since July, 1874. All the allegations of this answer were put in issue by the reply. A trial to the court, a jury having been waived, resulted in a judgment for plaintiff, Hull, as to lots 14 and 17, and for the defendant railroad company as to lots 15 and 16. The case was then brought to this court by Hull upon error, both parties filing petitions in error. Upon a hearing in this court, the judgment of the court below was affirmed so far as it was in favor of Hull, and reversed so far as it was against him. The opinion in that case is reported. Hull v. Railroad Co., 21 Neb. 371, 32 N. W. Rep. 162. The case went back to the district court, and, upon leave, the defendant railroad company filed another amended answer, in which the following defenses were interposed: (1) General denial. (2) That the Nebraska Railway Company, in 1874, took open, notorious, and public possession of said lots, and condemned them as required by law, and by itself and its lessees, the Burlington & Missouri River Railroad Company in Nebraska and the Chicago, Burlington & Quincy Railroad Company, had continuous, open, notorious, public, and exclusive possession for more than 10 years; that the plaintiff had actual knowledge of the possession, use, and occupancy of the lots by the three companies named; and that plaintiff, by his knowledge and silence, was estopped to assert his title. (3) That the Nebraska Railway Company is a necessary party to the action. (4) Ten years' statute of limitations. This answer having been put in issue by a reply, a trial was had on the 14th day of September, 1887, resulting in a judgment for the plaintiff, Hull, as to lots 15 and 16. The defendant company prosecuted proceedings in error to this court to reverse this judgment, which proceedings resulted in affirming the judgment of the court below. This second opinion is found in Railroad Co. v. Hull, 24 Neb. 740, 40 N. W. Rep. 280. On the 15th day of October, 1887, by virtue of a writ of restitution, the sheriff put the plaintiff, Hull, into possession of lots 14 and 17; and on the same day Hull leased these lots to S. A. Brown & Co.; and on the 23d day of February, 1888, Hull's title to lots 15 and 16 having been affirmed by this court, he leased those lots to Humphrey Bros. Hardware Company. On November 1,1887, the plaintiff herein filed its petition in this case, and procured from Judge FIELD a temporary injunction restraining said Hull from prosecuting the ejectment case heretofore mentioned, and in said petition asked to have the title to said lots quieted in the plaintiff, on the grounds that plaintiff had acquired title by adverse possession, and that Hull was estopped by his conduct from asserting his title. To this petition the defendant, Hull, filed an answer setting up the following defenses: (1) Denying the existence of the plaintiff. (2) That an action to quiet title would not lie because defendant was in possession of the property. (3) That the plaintiff, by its general attorney, appeared in the ejectment suit, and pleaded the title of plaintiff, and procured an adjudication thereof. (4) That the pretended condemnation proceedings taken by the plaintiff in 1876 were void. (5) That, by commencing the condemnation proceedings of 1876, the plaintiff recognized the title of defendant, and could not claim adversely thereto. (6) That the condemnation money deposited by the plaintiff had been withdrawn. (7) That in 1877 these lots were wholly abandoned for railroad purposes, and reverted to the defendant. Charles J. Hull having died on the 12th day of February, 1889, this cause was on the 1st day of April, 1889, revived in the name of Helen Culver, sole devisee under the will. Plaintiff replied by a general denial, and the cause coming on for trial to the court on the 6th day of December, 1889, a decree was rendered dismissing the plaintiff's bill, whereupon the case was brought to this court on appeal.
The testimony shows that in the year 1875 the Midland Pacific Railway located its line over a portion of these lots. Afterwards, in the same year, the Midland Company was consolidated with the Brownville, Ft. Kearney & Pacific Railway Company. The new corporation was called the Nebraska Railway Company. In December, 1875, the Nebraska Railway Company attempted to condemn the lots in controversy, and deposited the amount at which they were appraised with the county judge of Lancaster county. This deposit was withdrawn in the year 1880. In June, 1877, the Nebraska Railway Company leased its line of road to the Burlington & Missouri Railroad Company for the term of 999 years. The terms of the lease would indicate...
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