Neitzel v. Spokane Intern. Ry. Co.

• Decision Date: 06 June 1914
• Docket Number: 11672.
• Citation: 141 P. 186,80 Wash. 30
• Parties: NEITZEL et al. v. SPOKANE INTERNATIONAL RY. CO. et al.
• Court: Washington Supreme Court

141 P. 186

80 Wash. 30

NEITZEL et al. v. SPOKANE INTERNATIONAL RY. CO. et al.

No. 11672.

Supreme Court of Washington

June 6, 1914

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by A. Neitzel and others against the Spokane International Railway Company and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Jos Rosslow, of Spokane, J. O. Bailey, of Portland, Or., and E B. Hoffman, of Washington, D. C., for appellants.

Cannon, Ferris & Swan and Allen & Allen, all of Spokane, for respondents.

GOSE J.

This action was brought to recover the possession of two lots in Spokane, for damages for withholding possession, and to have the eminent domain proceedings by which the railroad company acquired title to the lots held null and void because of fraud practiced upon the court in the proceedings. The complaint alleges that the railway company at all times intended to, and has, used the lots for private warehouse sites, and that it never intended to use them for a public use. A demurrer to the complaint was sustained and, upon appeal, the judgment was reversed. Neitzel v. Spokane, etc., R. Co., 65 Wash. 100, 117 P. 864, 36 L. R. A. (N. S.) 522. Upon the filing of the remittitur below, issue was joined on the questions of fraud, private use, and abandonment of the easement. In support of their demand for a jury trial, the plaintiffs waived the charge of fraud in the eminent domain proceedings. The case was thereupon tried to a jury, resulting in a verdict and judgment for the defendants. The plaintiffs have appealed.

Upon the former appeal we held: (a) That the complaint states a cause of action upon the facts alleged arising since the entry of the judgment in the condemnation proceeding; (b) that the railway company acquired by the eminent domain proceeding 'a qualified fee or an easement' for a 'public use;' (c) 'before a reversion will be awarded, it must be made to appear that the condemning corporation has finally and positively abandoned the application of the property to the public use, and does not intend to restore it;' (d) that the railroad company may plead and show that it has not 'permanently abandoned the lots to a private use;' (e) that the respondent Benham & Griffith Company is using the property for a private use.

The first contention is that the verdict of the jury is not supported by the evidence. It is argued that the undisputed facts establish an abandonment of the easement for public purposes. The material facts touching this question are these: In 1906 the railway company leased to the respondent Benham & Griffith Company, a corporation, at a nominal rental, a portion of its terminal grounds, including the lots in controversy, for a term of 15 years, with an option of renewal for 10 years. The lessee was required to, and did, construct a two-story brick building upon the leased premises. It agreed in the lease to route all its business over the railway company's road. The respondent Benham & Griffith Company conducts a wholesale grocery business in the building. After the filing of the opinion of the former appeal, the lease was canceled by mutual agreement, and a new lease was entered into for a term of 10 years with an option of renewal for a like period. This lease provides that the railway company may terminate the lease if it shall need or desire to use the premises during the term of the lease or the renewal thereof, by giving on year's notice. The railway company, between October, 1906, and May, 1909, made a number of other leases of portions of its terminal grounds for a term of 10 years, with the privilege of renewing for a like term, and one lease for 20 years, with a right to renew for the same period. These leases also provide that the lessees would route their freight over the respondent's line of road. Substantial structures were erected upon the premises covered by these leases, and the property was used for wholesale houses. All the property covered by the leases was acquired by purchase, except the two lots in controversy and one other. Two of the directors of the railway company testified that the company did not intend to abandon its easement for a public use; that it had an arrangement with the Oregon & Washington Railway Company for a joint user of its terminals under which it was temporarily operating, and that in the near future it expected to devote all the terminal grounds to a public use; the the company would soon need all its grounds and 'a great deal more.' Mr. Corbin, the president of the railway company, testified that he anticipated future needs when he was acquiring terminal grounds; that, before acquiring the property in controversy, the railway company acquired by purchase a tract of ground for terminals subject to a 15-year lease, which lease it would have been very expensive to condemn, and that, because of that lease and a stringency in the money market, and in order to get business for the company, it was thought advisable to make the leases to which we have referred. Representatives of other railroads with large experience testified that the respondent's entire terminal grounds were inadequate to handle the prospective business of the company. The general superintendent of the railway company said that the entire terminal grounds would be needed 'long before the lease has expired'; that the company needed team tracks, freight sheds, and a passenger depot; that the present freighthouse was inadequate; and that the building upon the lots in controversy could be used for a freight warehouse 'without tearing it down.' It was further shown that the handling of the freight was economized by the construction and use of these buildings. Upon these facts the jury was warranted in finding that the railway company had not 'finally and positively abandoned the application of the property to a public use.'

A public service corporation may anticipate future needs, and mere nonuser of a portion of its easements does not of itself constitute an abandonment. Whether or not there has been an abandonment depends upon the intention of the owner of the easement. While such intention may be deduced from long nonuser, the nonuse itself does not constitute an abandonment, and does not of itself defeat or impair acquired rights. Nicomen Boom Co. v. North Shore B. & D. Co., 40 Wash. 315, 82 P. 412; Gonabeer v. N. Y., etc., R. Co., 156 N.Y. 474, 51 N.E. 402; Railway v. Peet, 152 Pa. 488, 25 A. 612, 19 L. R. A. 467. The same principle applies to a misuser. 'A misuser, however great the perversion, is not an abandonment.' Proprietors, etc., v. Nashua, etc., R. Co., 104 Mass. 1, 6 Am. Rep. 181.

At the close of the case, the appellants moved for a directed verdict against the respondent Benham & Griffith Company, for the recovery of the possession of the property as against it, for damages, and for an injunction against a further misuser. The motion was denied, and this ruling is assigned as error. In view of the fact that the jury has found that there has been no abandonment of the easement, and that the railway company intends to devote the property to a public use as soon as public necessity requires, we think there can be no sound distinction between a nonuser and a misuser, so long as the use to which the property is put, although a private use, is incidental to the company's business as a transportation company. There has been no reversion until there has been an abandonment. This view finds support in the following authorities: Roby v. N. Y., etc., R. Co., 142 N.Y. 176, 36 N.E. 1053; Peirce v. Boston, etc., R., 141 Mass. 481, 6 N.E. 96; Grand Trunk, etc., R. Co. v. Richardson, 91 U.S. 454, 23 L.Ed. 356; Western Union v. Rich, 19 Kan. 517, 27 Am. Rep. 159; Townsend v. N. Y., etc., R. Co., 156 Misc. 253, 106 N.Y.S. 381; Danville & W. R. Co. v. Lybrook, 111 Va. 623, 69 S.E. 1066, Ann. Cas. 1912A, 175; Dillon v. Railroad Co., 67 Kan. 687, 74 P. 251; I. C., etc., R. Co. v. Wathen, 17 Ill.App. 582; Abraham v. Oregon, etc., R. Co., 41 Or. 550, 69 P. 653; Railroad v. French, 100 Tenn. 209, 43 S.W. 771, 66 Am. St. Rep. 752; Michigan Central R. Co. v. Bullard, 120 Mich. 416, 79 N.W. 635; State v. Baltimore, etc., R. Co., 48 Md. 49.

In Roby v. New York, etc., R. Co., supra, the railway company had leased a portion of its terminal ground, which it had acquired by condemnation proceedings, for a term of 15 years, subject to the right of the company to terminate the lease upon giving six months' notice. The lease provided that the lands should be used for a coalyard and trestles for the purpose of receiving and handling coal transported over the company's road. An action was prosecuted by the owner of the fee to recover possession, upon the ground of an alleged abandonment. In denying relief, the court said:

'While it has been held in some cases that the owner of the fee, subject to the railroad easement, has some right to use the land taken, not inconsistent with the easement, the better view of the law, supported by the greater weight of authority, is that the use of the railroad company while the easement exists is exclusive of the owner of the fee. Pierce on Railroads, 159, 160, and cases cited; Mills on Eminent Domain, § 208; Hazen v. B. & M. Railroad Company, 2 Gray [Mass.] 574; Munger v. Tonawanda R. R. Co., 4 N. Y. 349 . * * * An easement may be abandoned by unequivocal acts showing a clear intention to abandon, or by mere nonuser, if continued for a long time. The mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment. Washburn on Easements (2d Ed.) 631 et seq., and cases cited; Hoggatt v. Railroad

...