Petrus v. Chicago, R.I. & P.R. Co.

• Decision Date: 15 December 1953
• Docket Number: No. 48170,48170
• Citation: 61 N.W.2d 439,245 Iowa 222
• Parties: PETRUS et al. v. CHICAGO, R. I. & P. R. CO.
• Court: Iowa Supreme Court

Page 439

61 N.W.2d 439

245 Iowa 222

PETRUS et al. v. CHICAGO, R. I. & P. R. CO.

No. 48170.

Supreme Court of Iowa.

Dec. 15, 1953.

Don H. Jackson, Proctor R. Perkins and Peterson, Smith, Peterson, Beckman & Willson, Council Bluffs, for appellants.

Ross, Johnson, Northrop & Stuart, Council Bluffs, and R. L. Read and A. B. Howland, Des Moines, for appellee.

WENNERSTRUM, Justice.

Plaintiffs in their action in the district court sought to have quieted title to a strip of land which is adjacent to other land owned by them. This strip is approximately 25 feet in width and 700 feet in length. Plaintiffs had enclosed the land in controversy by a fence and pleaded in their petition title to this particular property had been acquired by them by virtue of acquiescence on the part of the defendant and adverse possession for more than ten years by plaintiffs. The defendant asserted the use and possession of the land involved in this litigation was permissive only and that plaintiffs were only tenants at will. The trial court found in favor of the defendant and ordered a writ of possession in favor of it. The plaintiffs have appealed.

Sometime during the year 1931 J. B. Petrus, Sr., one of the plaintiffs herein, purchased a number of lots in the city of Council Bluffs, Iowa, a portion of these lots being adjacent to the defendant's right-of-way. On April 18, 1939 J. B. Petrus, Sr. acquired title to all the remaining lots in the addition in which his original purchase had been made. After the initial property was acquired a corporation was formed which carried on business under the name of the Midwest Walnut Company and was engaged in the processing of walnut lumber and veneers. This corporation continued until December 31, 1936 from which time J. B. Petrus, Sr. operated the business until a partnership was formed on or about June 30, 1943.

The defendant's right-of-way adjoins plaintiffs' property to the west and was acquired by deed in 1868 by a precedessor of the defendant company. The property claimed by the plaintiffs is located between the land originally purchased by Petrus and the defendant's railway line. It is maintained by the railroad to be a part of its right-of-way. It is plaintiffs' contention the land in controversy has been entirely enclosed by a wire fence which also encloses all of the other land and buildings owned and used by them.

Prior to 1935 the plaintiffs or some of them stored lumber on a portion of the land now in controversy but at that time no claim of ownership was made to the property then so used. On or about April 20, 1935 J. B. Petrus, Sr. commenced the construction of a fence on a line approximately 25 feet inside the land claimed by the defendant railroad company as its right-of-way. When the erection of this fence was commenced there was correspondence between a representative of the railroad company and one or more of the plaintiffs. On May 2, 1935 the local agent for the railroad company wrote a letter to the Midwest Walnut Company, the name under which the corporation was then operating. It is in part as follows:

'For your information, our right of way extends 50 feet from the center of the main line, both ways, north and south, and any fence that is put in will have to be not closer than this line, and if you are using any of the property inside of that, it will be necessary to arrange for lease. I am informed by Mr. Leslie that a few posts have already been set which are within the line and if such is the case it will be necessary that they be removed.'

On May 7, 1935, the local agent also wrote a letter to the division superintendent of the railroad company which is in part as follows:

'The Midwest Walnut Company are (is) operating a yard on South Avenue on property leased from the Children Manufacturing Company's Estate and they would like to use part of our right-of-way along side of their yard and put up a fence. The fence would be 25 feet from our north right-of-way line and about the same distance from the center of our main line and would give good clearance on our passing tract.

'I am attaching herewith a rough sketch showing about what they would like to have and would ask if this can be arranged and if so, at what rental.'

Later in the year 1935 the local agent who had written the previously referred to letters died and thereafter no further letters were written by representatives of the company until the present controversy developed.

In 1939 the Midwest Walnut Company's plant was damaged by reason of the flooding of it by surface water. It was then claimed the defendant railroad company and the Chicago, Milwaukee, St. Paul & Pacific Railway Company were responsible because of the filling up of drains and the resulting inability of the water to drain rapidly from their properties including the land here involved. An action was brought by Mr. Petrus, Sr. against the two railroads and these suits were settled in 1940 by the payment of $2,250, one-half of which was paid by each of the two railroad companies. It was claimed lumber was damaged by flood waters and this lumber was stored within the area then or later fenced.

During the month of September, 1939, a representative of the plaintiffs wrote a letter to the defendant company in which complaint was made concerning the fact that employees of the defendant railroad company had failed to keep the gates across the tracks locked upon leaving the property. This letter is in part as follows:

'As you know, we recently put a fence around our property and in doing this put two gates across the railroad switch tracks. This was done with your permission, and an arrangement was made whereby you were to have a lock on each of these gates, and you were to have a switch lock which would enable either of us to open the gates.'

During the latter part of the year 1940 or the early part of the year 1941 the plaintiffs erected a drying kiln entirely on their own property. At this time they also installed a short length of track at right angles to the railroad tracks on the property in controversy. It was constructed to make possible the movement of trucks or conveyances to handle lumber taken from railroad cars and which plaintiffs might wish to be stored in the drying kilns. This track was constructed on a portion of the 25-foot strip of land heretofore mentioned. It is the plaintiffs' claim they have had possession of the property within the area fenced since the fence was erected in 1939 but have permitted the defendant company and switch crews to have access to the property here involved in order to serve the plaintiffs' plant as well as other industries located on this particular switch track.

During April, 1951 the defendant railroad company commenced preliminary surveys for the construction of a new...