Omaha & R. V. Ry. Co. v. Rickards

• Decision Date: 16 January 1894
• Citation: 57 N.W. 739,38 Neb. 847
• Parties: OMAHA & R. V. RY. CO. v. RICKARDS.
• Court: Nebraska Supreme Court

38 Neb. 847

57 N.W. 739

OMAHA & R. V. RY. CO.

v.RICKARDS.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. An easement in real estate may be acquired by open, notorious, peaceable, uninterrupted, adverse possession for the statutory period of 10 years.

2. Where a party enters upon and occupies land under color of title, such possession is regarded as coextensive with the entire tract described in the instrument under which such possession is claimed.

3. Although color of title is not indispensable to adverse possession, yet where a railroad company enters upon and takes possession of the real estate of another for a right of way, without color of title, such possession is limited to the land actually occupied; and in such case the corporation will acquire a right of way of the width, and no more, which it has so used and occupied for the full period of limitations.

4. In proceedings to condemn land of an individual for the use of a railroad, the petition must accurately describe the tract affected by the proceedings. Where the petition describes the land by government subdivision, the description is insufficient to authorize the condemnation of real estate within the limits of an incorporatedcity, which real estate has been laid out and platted into lots and blocks.

Error to district court, Gage county; Appelget, Judge.

Action in ejectment by John N. Rickards against the Omaha & Republican Valley Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.

J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Rickards & Prout, for defendant in error.

NORVAL, C. J.

This is an action of ejectment by John N. Rickards against the Omaha & Republican Valley Railway Company to recover possession of a portion of lot 103 in South Beatrice,--an addition to the city of Beatrice. The petition is in the ordinary form. The defendant answered by a general denial, and also pleaded the statute of limitations of 10 years. Plaintiff replied, denying each allegation of new matter contained in the answer. There was a trial to the court, without the intervention of a jury, which resulted in a finding and judgment for the defendant company that it has an easement in, and is entitled to the possession of, that part of said lot 103 embraced in the following description, to wit: Commencing at the northeast corner of said lot 103; running thence, south, 27 feet; thence, northwesterly, to a point 56 feet west of the northeast corner of said lot; thence, east, 56 feet, to the place of beginning. The court further found for the plaintiff for so much of said lot 103 as is described as follows: Beginning at a point 56 feet west of the northeast corner of said lot; running thence west 43 feet; thence southeasterly to a point in the south line of said lot 37 feet west of the southeast corner of said lot; thence east 37 feet; thence north 17 feet; thence northeasterly to the point of beginning. The defendant prosecutes error, alleging that the finding in favor of the plaintiff is not sustained by sufficient evidence, and is contrary to law.

The cause was tried upon the following agreed statement of facts: “First. The property in controversy is situated within the limits of the east half, northeast quarter, of section four, town three, range six east of the sixth P. M. Second. The legal title to said tract, and the disposition thereof, is shown, so far as the same appears thereon, by the abstract of the title thereto, hereto annexed, marked ‘Exhibit A,’ and made a part hereof. Other proceedings and conveyances claimed to affect said property are as below stated. Third. The abstract annexed, and its memoranda of conveyances, and also the statements and memoranda of other proceedings below written, are to be taken with the same effect as though the original instruments and proceedings were themselves hereto annexed. Fourth. The track of the defendant, and its roadbed, in fact occupied when constructed, and still occupies, the following described ground, viz.: Commencing at the northeast corner of lot No. 103 in South Beatrice; running thence south 27 feet; thence in a northeasterly direction to a point 56 feet west of the N. E. corner of said lot; thence east 56 feet to the place of beginning. Fifth. The Omaha & Republican Valley Railroad Company was, about the month of September, 1879, a railroad corporation of this state, and at said time located its line of railroad over and across the east half, northeast quarter, section four, town three north, range 6 east, and by its line across said land in fact intersected and crossed lots 104, 103, 102, 110, 111, 112, 113, 114, 99, 100, 101, in South Beatrice, as shown by the plat thereof, referred to in the abstract of title hereto annexed, marked ‘Exhibit A.’ Sixth. That the Omaha & Republican Valley Railroad Company finished and completed its line of road, as in this agreement mentioned, on or about January 1, 1880, and has from thence hitherto, it and its successors, maintained, occupied, and operated the same on the line of its original location. Seventh. That about the month of September, 1879, the Omaha & Republican Railroad Company commenced and instituted certain proceedings in the county court of Gage county, Neb., to obtain a right of way for its railroad, and for such purpose duly filed its petition in said court, and that said court duly appointed a commission for such purpose as provided by law. That on or about November 13, 1879, proof of service of notice on the South Platte Land Company in said proceeding was filed in said court, a copy of which is hereto annexed, marked ‘Exhibit B.’ That afterwards, on the 14th day of November, 1879, said commission filed in said proceedings a report of its doings in the premises, a copy of which is hereto annexed, marked ‘Exhibit C.’ That on November 18, 1879, the said Omaha & Republican Valley Railroad Company deposited in said county court the amount of money awarded by said commission in said proceeding, as stated and awarded in and by said Exhibit C. That afterwards, on December 29, 1879, there was filed in said county court by said South Platte Land Company a certain order for the payment of money, a copy of which, with its indorsements, is hereto annexed, marked ‘Exhibit D,’ and made a part hereof. That on January 9, 1880, the said county court paid out said money on said order, and took a receipt therefor in writing, a copy of which is hereto annexed, marked ‘Exhibit E,’ and the same is made a part hereof. The said commissioners so appointed by said county court were, before the making of the said appraisement and report set forth in said Exhibit C, qualified by taking the oath prescribed by law, a copy of which is hereto annexed, marked ‘Exhibit CC,’ and the same is made a part hereof. The said report and condemnation proceedings above referred to were all of them recorded in the office of the county clerk of Gage county, Neb., on the 7th day of January, 1880, at 2 o'clock P. M. of said day, and entered in the numerical index, and recorded in Book D of Miscellaneous Records, (page 125 and following.) Eighth. That on the 26th day of December, 1879, the said South Platte Land Company made, executed, and delivered to the said Omaha & Republican Valley Railroad Company its certain deed, a copy of which is hereto annexed, marked ‘Exhibit F,’ and the same is made a part hereof. Ninth. The map or plat hereto annexed, marked ‘Exhibit G,’ made a part hereof, shows the location of the east half, northeast quarter, and of South Beatrice, as laid out thereon, and the line of the original location and construction of said railroad over and through the same; the track shown thereon crossing near the northeast corner of lot 103, being the line of original location. Tenth. The heavy white line on said map shows the line which defendant and its predecessor claims and has claimed as its exterior boundary lines under said condemnation proceedings and the said deed to the Omaha & Republican Valley Railroad Company, the particular premises within lot 103 so claimed by it being described as follows: Commencing at the northeast corner of lot 103; running thence west on north line of said lot 99 feet; thence southeasterly to a point in the south line of said lot 37 feet west of the southeast corner thereof; thence east 37 feet; thence north 44 feet to the place of beginning. Eleventh. The Omaha & Republican Valley Railroad Company is a railroad corporation of the state of...