Puett v. Western Pacific R. Co.
| Decision Date | 30 March 1988 |
| Docket Number | No. 17764,17764 |
| Citation | 104 Nev. 17,752 P.2d 213 |
| Parties | Ryon R. PUETT, Appellant, v. WESTERN PACIFIC RAILROAD COMPANY, a corporation, Respondent. |
| Court | Nevada Supreme Court |
Wilson and Barrows, Elko, for appellant.
Woodburn, Wedge, Blakey and Jeppson and Suellen Fulstone, Reno, for respondent.
Appellant Ryon Puett owns land subject to respondent Railroad's right of way. Puett contends that, as owner of the servient estate, he has a right under the law to a private vehicular crossing over the Railroad's right of way. The Railroad claims that, pursuant to the federal act granting its right of way, Congress intended that the railroads have exclusive use and possession of the surface of the way; consequently, the Railroad contends that the appropriate remedy--both for Puett and as a matter of equity--is for the Railroad to issue a license to Puett. We agree with the Railroad and therefore affirm the summary judgment.
Puett owns property located in Section 30, Township 33 North, Range 53 East, just outside Carlin in Elko County, Nevada. He traces his title to a Desert Land Entry Patent issued by the United States in 1930 to his predecessors in interest. In 1913 his grandmother, Myrtle Puett, originally filed an application under the Desert Land Entry Act for Section 30.
Puett's predecessor in interest acquired the property subject to the Western Pacific Railway Company's right of way (now, by merger, a division of the Union Pacific Railroad Co., hereafter "Railroad"). The Railroad acquired that right of way under the federal General Railroad Right of Way Act of 1875 (codified at 43 U.S.C. §§ 934-39, hereafter "1875 Act"). 1 The Railroad does not dispute Puett's contentions that in 1911 the Railroad built a crossing across its tracks when it traversed the Puett property, and that this crossing was continually used by him and his predecessors from 1913 to January of 1985.
No question was raised about the private use of the crossing until approximately September, 1982. At that time Puett came into the Railroad office in Elko to request upgrading of the existing crossing; Puett explained that he wanted to subdivide and develop his property south of the tracks for the purpose of creating a gravel business. The office, however, could not find any documentation allowing Puett to use the crossing, and Puett was unable to proffer any. As a result, the Railroad ordered the crossing removed. Subsequently, Puett made application for a road crossing at the site. The Railroad sent a licensing form which Puett rejected.
In November, 1982, Puett filed the instant action alleging his right to an easement for a grade crossing across the Railroad's right of way. Puett also filed for a preliminary injunction to restrain the Railroad from interfering with his use of the crossing. However, Puett failed to pursue his actions and the case was inactive for two years.
In February of 1985, Puett again moved for preliminary injunctive relief; the motion was denied. In its denial, the district court noted that the Railroad's right of way is an easement in perpetuity to exclusive use and possession, and that the property was acquired by Puett's predecessors after the Railroad had acquired its right of way. Consequently, the court concluded that Puett could not acquire a prescriptive easement against the Railroad. The court also suggested that Puett's remedy was limited to pursuing the Railroad's offer of a licensing agreement. 2
In January 1986, Puett filed an action in federal district court (District of Nevada) seeking similar relief purportedly under a different legal theory: a right to a grade crossing as an owner of the servient estate to the Railroad's right of way. Subsequently, Puett filed a motion for stay of proceedings in the Elko court pending a final determination by the federal court; the motion was denied. The Railroad moved for summary judgment and, pursuant to stipulation of the parties, Puett filed an amended complaint purportedly dropping all claims to an easement and asserting the theory proffered in the federal action.
The Railroad's motion for summary judgment was granted. Puett appeals, contending that as owner of a servient estate, he has a right under the law to a vehicular grade crossing across the Railroad's right of way as it crosses his property.
The right of way acquired by the Railroad under the 1875 Act is an easement; at the time of the grant, the fee or servient estate remained in the United States. Great Northern Railway Co. v. United States, 315 U.S. 262, 271, 276-77, 62 S.Ct. 529, 532, 535, 86 L.Ed. 836 (1941). Thus, in considering whether a right of way for an irrigation ditch and flume could be acquired by prescription against the right of way of a railroad (received via the 1875 Act), the Tenth Circuit in Himonas v. Denver & R.G.W.R. Co., 179 F.2d 171 (10th Cir.1949), held:
Since the Railroad Company did not own the fee, it could not dedicate or grant any part thereof, and no right in the servient estate could be acquired by prescription. Neither could the Railroad Company grant any part of its right of way for private use nor could adverse interests be acquired in such right of way for private use by prescription.
179 F.2d at 172-73. Following similar reasoning, the Tenth Circuit rejected a claim of adverse possession by a lumber company to the strips of land on each side of a railroad track. The court noted that the right of way received by the railroad under the 1875 Act precluded the lumber company from claiming the strips of land by reason of adverse possession, abandonment or estoppel. Boise Cascade Corp. v. Union Pac. R. Co., 630 F.2d 720 (10th Cir.1980).
Puett, acknowledging that a railroad is prohibited from granting easements in its right of way, dropped all claims to an easement and advanced an alternative theory that as the servient owner of the land he has a right under the law to a vehicular grade crossing. A review of the case law supports the Railroad's claim that the 1875 Act intended railroads to have exclusive use and possession of the surface right of way granted by the act. Although such a feature (exclusive use and possession) is not ordinarily associated with an easement as it existed at common law, the cases interpreting the 1875 Act demonstrate that the easements granted thereby were not intended to be construed within the traditional definition of an easement.
Indeed, before 1942, the nature of the Railroad's right of way was termed as a "limited fee." See, e.g., Northern Pacific Ry. v. Townsend, 190 U.S. 267, 271, 23 S.Ct. 671, 672, 47 L.Ed. 1044 (1903). The Tenth Circuit explained that term as follows:
The concept of "limited fee" was no doubt applied in Townsend because under the common law ... an easement did not give an exclusive right of possession. With the expansion of the meaning of easement to include, as far as railroads are concerned, a right in perpetuity to exclusive use and possession the need for the "limited fee" label disappeared.
Wyoming v. Udall, 379 F.2d 635, 640 (10th Cir.1967) (emphasis added). In Idaho v. Oregon Short Line R. Co., 617 F.Supp. 207 (D. Idaho 1985), the Idaho federal court set forth in some detail the history of federal railroad grants and the nature of the rights of way thus acquired. Again, as noted in Udall, the Short Line court brought attention to the "definitional problem" of the right of way granted to the railroads. In describing the efforts in the case law to define property interest conveyed to a railroad by grant of a right of way, the Short Line court reflected that the result was a "rather unartful coinage of the term 'limited fee with an implied condition of reverter,' something of a hybrid between a fee simple interest and a mere easement interest." 617 F.Supp. at 210. After reviewing the legislative history, statutes and cases dealing with the rights-of-way granted to railroads, 3 the Idaho court concluded that
Congress, in granting the 1875 Act rights-of-way, did not intend to convey to the railroads a fee interest in the underlying lands. Congress did, however, intend to give the railroads an interest suitable for railroad purposes--a right-of-way, which, by definition, carried with it the right to exclusive use and occupancy of the land.
An analogous situation to the instant case was presented in Denver & S.L. Ry. Co. v. Pacific Lumber Co., 86 Colo. 86, 278 P. 1022 (1929). In Pacific Lumber, a lumber company sought an injunction to keep the railroad from interfering with the lumber company's use of a crossing where the railroad's tracks passed through the company's patented land; a mandatory order compelling the railroad to reinstall the removed crossing was also sought. As in the instant case, the railroad had acquired its right of way via the 1875 Act prior to the lumber company's predecessor in interest acquiring the fee to the property. On those facts, the Colorado Supreme Court held that the lumber company had no right to a private crossing, noting that
[S]o long as the defendant railway company maintains its line of road, it has the right of exclusive use and possession of its right of way.
... the owner of the servient estate...
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