Omaha & Northern Nebraska Railway Co. v. Redick

• Decision Date: 20 August 1884
• Citation: 20 N.W. 309,16 Neb. 313
• Parties: THE OMAHA AND NORTHERN NEBRASKA RAILWAY COMPANY, PLAINTIFF IN ERROR, v. JOHN I. REDICK, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 309

16 Neb. 313

THE OMAHA AND NORTHERN NEBRASKA RAILWAY COMPANY, PLAINTIFF IN ERROR, v. JOHN I. REDICK, DEFENDANT IN ERROR

Supreme Court of Nebraska

August 20, 1884

ERROR to the district court for Douglas county. Tried below before SAVAGE, J.

REVERSED AND DISMISSED.

John D Howe, for plaintiff in error, cited: Erie R. R. Co. v. D L. & W. Co., 21 N.J.Eq. 288. C. R. R. Co. v Pelfield, 5 Dutcher (N. J.), 206. Pettibone v. La Crosse R. R., 14 Wis. 479 and cit. Pusey v. Wright, 31 Pa. 387. Hornback v. C. & Z. R. R., 20 Ohio St. 81. Wetherell v. Brobst, 23 Iowa 586. Wilson v. Chalfant, 15 Ohio 248. L. M. R. R. v. Whitacre, 8 Ohio St. 591-4. City of Columbus v. Dahn, 36 Ind. 330. Richmond v. Dubuque, &c., R. R., 33 Iowa 422. Dietrick v. Murdock, 42 Mo. 279. E. P. R. R. Co. v. Schollenberger, 54 Pa. 144. Hanlon v. Wilson, 10 Neb. 138 at 142. McAuley v. W. R. R. Co., 33 Vermont, 311. C., B. & Q. v. Knox College, 34 Ill. 195. Austin v. Rutland Ry. Co., 45 Vt. 215. Dale v. Hunneman, 12 Neb. 221. Sappington v. Little Rock R. R., 37 Ark. 23. Kutz v. McCune, 22 Wis. 628 at 631.

Redick & Redick and John I. Redick, for defendant in error, cited: Purcell v. Miner, 4 Wall., 517. Carrolls v. Cox & Shelley, 15 Iowa 455. Conway v. Smith and wife, 13 Wis. 142. Downer v. Smith, 24 Cal. 114. Sherman v. Milwaukee, Lake Shore & Western Railroad Company, 40 Wis. 645. 87 Penn. State, 28. Railroad v. Robbins, 35 Ohio St. 531. Pierce on Railroads, 230.

OPINION

COBB, J.

This was an action of ejectment for the possession of a forty-acre tract of land. The defendant in the court below in its answer disclaimed "all claim of title, or possession, or right of possession in or to all of the real estate described in the petition, except that portion thereof included in the right of way ground of its said railroad, to-wit: a strip 100 feet wide containing about 1 1/3 acres running across the north-east corner of said tract, said right of way ground extending 50 feet each way from the center of the track of said railroad," etc. Admitted "that it is by itself and its grantees in possession of said right of way grounds, but denies that its said possession is unlawful or that the plaintiff owns the same in fee simple, or is entitled to the possession thereof." Also averred "that it owns and at the period named in the petition did own said right of way ground, and is and all said time has been entitled to the possession thereof."

The cause was tried to the court, a jury being waived, with finding and judgment for the plaintiff. A motion for a new trial being overruled the cause is brought to this court on error.

Plaintiff in error makes the following points:

1. That the findings and decision of the court are not sustained by sufficient evidence.

2. That the same are contrary to law.

3. That the court erred in admitting in evidence testimony offered by the plaintiff below over the objection and exception of the defendant below, and also in refusing to admit in evidence testimony offered by defendant below, etc.

It appears from the record that the plaintiff below was one of the projectors of the Omaha and Northwestern Railroad, the owner of more than one-fifth of the capital stock of the company, and an active member of the board of directors during the lifetime of said corporation. During this time, and in the latter part of 1869 and fore part of 1870, the first ten miles of said railroad were built extending across the corner of the forty-acre tract of land belonging to the plaintiff below and described in the petition. It was claimed by the plaintiff in error, in the court below and in this court, that all of the stockholders being directors and all owning lands appropriated by the company for right of way purposes, including the plaintiff below, mutually agreed to donate and convey the right of way to the said company over their several tracts of land respectively. That each of the other stockholders and directors, except the defendant in error, made such conveyances, but that he, after having several deeds drafted for such purpose, failed to execute any of them. This is testified to by Mr. Budd and Mr. Harbach, officers of the said company, but is denied by defendant in error in his testimony, and as the trial court found for the plaintiff it must be considered in this court as not proven. I think that had the district court found that the plaintiff donated the right of way to the railroad company that such finding would have been sustained by the evidence. In such case the donation having been accepted and acted upon for nearly ten years could not now be revoked by the donor. But it did not; but must have found to the contrary, and there being a conflict of evidence such finding will not be disturbed.

But it is not denied, nor can it be, under the evidence, that the plaintiff knowingly permitted the company to occupy his land with its railroad track, nay, that in one sense, as an active member of the board of directors, he with his associates built the road over his land and allowed it to remain there for at least seven years. It is probable that at any time during this period he could have caused the company, of which he was an influential...