Nebraska Ry. Co. v. Culver

• Decision Date: 01 July 1892
• Parties: NEBRASKA RY. CO., APPELLANT, v. HELEN CULVER ET AL., APPELLEES
• Court: Nebraska Supreme Court

52 N.W. 886

35 Neb. 143

NEBRASKA RY. CO., APPELLANT, v. HELEN CULVER ET AL., APPELLEES

Supreme Court of Nebraska

July 1, 1892

APPEAL from the district court for Lancaster county. Heard below before CHAPMAN, J.

AFFIRMED.

Chas E. Magoon, for appellant, cited: Deerfield v. Conn. Riv R. Co., 144 Mass. 338; Mueller v. Fruen, 36 Minn. 274; Gould, Waters, sec. 329; Angell, Watercourses sec. 203 et seq.; Washburn, Easements, 84; Haight v. Price, 21 N.Y. 241; Prentice v. Geiger, 74 N.Y. 341; Vail v. Mix, 74 Ill. 127; Coe v. Mfg. Co., 35 Conn. 175; Tootle v. Clifton, 22 Ohio St. 247; Scheuber v. Held, 47 Wis. 340; O. & Ind. R. Co. v. Zinn, 18 Ohio St. 417; Barker v. Salmon, 2 Met. [Mass.], 32; Brown v. King, 5 Id., 173; Ashley v. Ashley, 4 Gray [Mass.], 197; James v. R. Co., 91 Ill. 554; Schall v. R. Co., 35 Pa. 191; Day v. R. Co., 41 Ohio St. 392; Gatling v. Lane, 17 Neb. 83; Haywood v. Thomas, Id., 241; Fitzgerald v. Brewster, 31 Id., 51; Valentine v. Mahoney, 37 Cal. 389; Samuel v. Dinkins, 12 Rich. [S. Car.], 172; Mann v. Rogers, 35 Cal. 316; Harbin v. Roberts, 33 Ga. 45; Gregg v. Wells, 10 Ad. & E. [Eng.], 90; Chapman v. Chapman, 59 Pa. 214; Crest v. Jack, 3 Watts [Pa.], 238; Woods v. Wilson, 37 Pa. 383; Brooks v. Curtis, 4 Lans. [N. Y.], 283; Bourdier v. R. Co., 35 La. Ann. 949; Goodin v. Canal Co., 18 Ohio St. 179; Kellogg v. Ely, 15 Id., 64; State v. Graham, 21 Neb. 355; Taylor, Landlord & Ten., sec. 180; Forbes v. Caldwell, 39 Kan. 19; Doe v. Reynolds, 27 Ala. 364; Jackson v. Haviland, 13 Johns. [N. Y.], 229; Smith v. Trabue, 1 McLean [U. S.], 87; Smith v. Hornback, 4 Litt. [Ky.], 232; Wheeler v. Ryerss, 4 Hill [N. Y.], 467; Hopkins v. Calloway, 7 Cold. [Tenn.], 37; Oetgen v. Ross, 47 Ill. 142; Smith v. Pretty, 22 Wis. 655; Cadwallader v. Harris, 76 Ill. 370; Magwire v. Labeaume, 7 Mo. App., 179; Read v. Allen, 56 Tex. 180; Newman v. Bank, 80 Cal. 371; Stout v. Tall, 9 S.W. [Tex.], 331; Spotts v. Hanley, 85 Cal. 155; Valentine v. Mahoney, 37 Id., 399; Calderwood v. Brooks, 28 Id., 152; Wheelock v. Warschauer, 34 Id., 265; Dutton v. Warschauer, 21 Id., 620; Douglas v. Fulda, 45 Id., 592; Shay v. McNamara, 54 Id., 175; Chant v. Reynolds, 49 Id., 213; Richardson v. Pickering, 41 N.H. 386; State v. Holloway, 8 Blackf. [Ind.], 47; Dodge v. R. Co., 20 Neb. 276; Barker v. Salmon, 2 Met. [Mass.], 32; Finlay v. Cook, 54 Barb. [N. Y.], 9; Tyler, Eject., 873; Stettnische v. Lamb, 18 Neb. 626; Pullman Car Co. v. M. P. R. Co., 115 U.S. 587.

Lamb, Ricketts & Wilson, contra, cited: Powell v. Bagg, 8 Gray [Mass.], 441; R. Co. v. Danberg, 2 Saw. [U. S.], 452; Hazelton v. Putnam, 3 Pin. [Wis.], 107; 3 Washburn, R. Prop. [5th Ed.], 144, 315, 362; McCall v. Neely, 3 Watts [Pa.], 71; Wheeler v. Bates, 21 N.H. 460; Drew v. Westfield, 124 Mass. 461; Slater v. Rawson, 6 Met. [Mass.], 439; Smith v. Burtis, 6 Johns. [N. Y.], 216; Cooper v. Smith, 9 S. & R. [Pa.], 26; Cagle v. Parker, 2 S.E. [N. Car.], 76; Morse v. Copeland, 2 Gray [Mass.], 302; Smith v. Miller, 11 Id., 145; C. & N. W. R. Co. v. Hoag, 90 Ill. 349; Tinkham v. Arnold, 3 Me., 120; 2 Greenl., Ev., 539; Edson v. Munsell, 10 Allen [Mass.], 568; Parker v. Foote, 19 Wend. [N. Y.], 309; Sargent v. Ballard, 9 Pick. [Mass.], 251; Daniels v. C. & N. W. R. Co., 35 Iowa 129; Colvin v. Burnet, 17 Wend. [N. Y.], 564; Pierre v. Fernald, 26 Me. 440; Liford's Case, 11 Coke [Eng.], 51; Dewey v. Osborne, 4 Cow. [N. Y.], 329; Dunn v. Miller, 75 Mo. 272; Read v. Allen, 56 Tex. 176; Newman v. Bank, 80 Cal. 368; Stout v. Tall, 9 S.W. [Tex.], 321; Spotts v. Hanley, 24 P. [Cal.], 741; Reynolds v. Willard, 22 Id., 261; Watkins v. Peck, 13 N.H. 360; New Orleans v. Shakespeare, 39 La. Ann. 1033; Ward v. Parlin, 30 Neb. 384, and cases cited; Hoagland v. Lusk, 33 Neb. 376; Viele v. Judson, 82 N.Y. 40; Earl v. Stevens 57 Vt. 478; Crossmon v. May, 68 Ind. 244; Stockman v. Land Co., 28 P. [Cal.], 117; Allen v. Shaw, 61 N.H. 97; Taylor v. Ely, 25 Conn. 250; Stevens v. Dennett, 51 N.H. 342; Patterson v. Hitchcock, 3 Colo., 536; Griffith v. Wright, 6 Id., 250; Pitcher v. Dove, 99 Ind. 178; Monks v. Belden, 80 Mo. 639; Bales v. Perry, 51 Id., 449; Staton v. Bryant, 55 Miss. 261; Wazata v. R. Co., 49 N.W. [Minn.], 205; Ferguson v. Millikin, 42 Mich. 441; Royce v. Watrous, 73 N.Y. 597; Buckingham v. Hanna, 2 Ohio St. 551; Henshaw v. Bissell, 18 Wall. [U. S.], 255; Brant v. Coal Co., 93 U.S. 326; Lance's Appeal, 55 Pa. 25; Odneal v. Sherman, 14 S.W. [Tex.], 31; Lyon v. McDonald, Id., 261; Hahn v. Baker Lodge, 27 P. [Ore.], 167; Dennis v. Spencer, 47 N.W. [Minn.], 795; Ger. Ins. Co. v. Fairbanks, 32 Neb. 750; Mabary v. Dollarhide, 11 S.W. [Mo.], 611; Bruce v. Platt, 80 N.Y. 379; Hollingshead v. Woodard, 107 Id., 96; Mumma v. Potomac, 8 Pet. [U. S.], 286; Dobson v. Simonton, 86 N. Car. , 492; Phillips v. Wickham, 1 Paige Ch. [N. Y.], 595; Briggs v. Penniman, 8 Cow. [N. Y.], 387; Gains v. Bank, 12 Ark. 769; Christian Soc. v. Proctor, 27 Ill. 414; Boyce v. M. E. Church, 46 Md. 359; Greenwood v. R. Co., 10 Gray [Mass.], 373; M. R. & Ft. S. R. Co. v. Shirley, 20 Kan. 660; Greeley v. Smith, 3 Story [U. S.], 657; Natl. Bank v. Colby, 21 Wall. [U. S.], 615; Alexandria v. Fairfax, 95 U.S. 774; Strickland v. Prichard, 37 Vt. 324; Mfg. Co. v. Marsh, 1 Cush. [Mass.], 507; Mahone v. R. Co., 111 Mass. 75; President M. & M. Co. v. Coquard, 40 Mo. App., 40.

OPINION

MAXWELL, CH. J.

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:

First--General denial.

Second--Condemnation proceedings by the Burlington & Missouri River Railroad Company in December, 1879.

Third--Ten-year statute of limitations.

Fourth--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 in Hull v. C., B. & Q. R. Co., 21 Neb. 371, 32 N.W. 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:

First--General denial.

Second--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 ten 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.

Third--That the Nebraska Railway Company is a necessary party to the action.

Fourth--Ten years statute of limitation.

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 a proceeding in error to this court to reverse this judgment, which proceeding resulted in affirming the judgment of the court below. This second opinion is found in C., B. & Q. R. Co. v. Hull, 24 Neb. 740, 40 N.W. 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:

First--Denying the existence of the plaintiff.

Second--That an action to quiet title would not lie, because defendant was in possession of the property.

Third--That the plaintiff, by its general attorney, appeared in the ejectment suit and pleaded the title of plaintiff and procured an adjudication thereof.

Fourth--That the pretended condemnation proceedings taken by the plaintiff in 1876 were void.

Fifth--That by commencing the condemnation proceedings of 1876 the plaintiff recognized the title of defendant and could not claim adversely thereto.

Sixth--That the condemnation money deposited by the plaintiff had been withdrawn.

Seventh--That in 1877 these lots were wholly abandoned for railroad purposes and reverted to the defendant.

Charles J. Hull having died on the...