Ruff v. The Board of County Commissioners of Shawnee County

• Decision Date: 08 December 1928
• Docket Number: 28,548
• Citation: 127 Kan. 188,272 P. 189
• Parties: ANTHONY L. RUFF, Appellant and Appellee, v. THE BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Consisting of J. A. COLE, Chairman, JOHN SUTHERIN, JR., IRA C. WILLIAMS, and THE UNION PACIFIC RAILROAD COMPANY, Appellant and Appellee; and THE STATE HIGHWAY COMMISSION, Appellee
• Court: Kansas Supreme Court

272 P. 189

127 Kan. 188

ANTHONY L. RUFF, Appellant and Appellee, v. THE BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Consisting of J. A. COLE, Chairman, JOHN SUTHERIN, JR., IRA C. WILLIAMS, and THE UNION PACIFIC RAILROAD COMPANY, Appellant and Appellee; and THE STATE HIGHWAY COMMISSION, Appellee

No. 28,548

Supreme Court of Kansas

December 8, 1928

Decided July, 1928.

Appeal from Shawnee district court, division No. 3; OTIS E. HUNGATE judge.

Judgment affirmed on plaintiff's appeal, judgment reversed and cause remanded on cross appeal.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTIONS--Lease of Railway Right of Way for Public Highway--Who May Maintain Action. Where a board of county commissioners entered into a fifty-year lease of a part of a railway right of way for use as a public highway, and agreed to vacate a portion of the premises of the railroad company now occupied by a public road by sufferance of the railway company, a private taxpayer and owner of property has authority under the civil code to institute an action questioning the validity of the lease contract so far as its terms will increase his tax burdens illegally, and if the contract is illegal he has a right to maintain such action for injunctive relief so far as he is damaged peculiarly and differently from the general public by its performance; but he has no right to provoke litigation over details of the lease contract of no more concern to him than to the public in general.

2. ADVERSE POSSESSION--Railway Right of Way. Prescriptive title could not begin to arise against a railway company through use and occupancy of its right of way by a public road until after the act of congress, June 24, 1912, took effect, where the railway company's title was founded on a federal land grant for railway purposes, pursuant to acts of congress effective July 1, 1862, and July 2, 1864.

3. COUNTIES--Powers and Authority--Lease of Railway Right of Way for Public Highway. A fifty-year lease of part of the Union Pacific Railway Company's 400-foot right of way as a location for a public road is valid, following Sandburg v. Wyandotte County Comm'rs, 121 Kan. 26, 245 P. 1029.

4. SAME--Validity of Lease Generally. Various objections to certain details of the lease contract considered and not sustained as to several, and that others are not of justiciable concern at the instance of plaintiff.

5. SAME--Right of Private Individual to Enjoin Performance of Lease. An important interstate highway has occupied certain portions of the Union Pacific Railroad Company's right of way for half a century in Shawnee county. Here and there across the west half of the county the road is sometimes on one side of the railway and again on the other. The occupancy was merely that of sufferance, which the adoption of the Norris act of June 24, 1912, virtually compelled the railway company to terminate prior to June 24, 1927, or suffer the possibility of losing its right to the property by adverse possession. In recent years the board of county commissioners has been engaged in paving portions of this road and contributions by the federal and state government have been made thereto; but both these authorities eventually declined to contribute further to the improvement of this road unless it was relocated on the one side of the railway track. The county board and the railway company agreed on a lease of the south sixty-six feet of the railway right of way, and the board agreed to vacate and abandon the portions of the railway property hitherto occupied by the public road. Held, notwithstanding the inconvenience to plaintiff which the vacation of the railroad company's property will occasion him, he is not entitled to interfere with the performance of the lease contract by injunction.

A. E. Crane, Tinkham Veale, B. F. Messick and A. Harry Crane, all of Topeka, for the appellant.

T. M. Lillard, Bruce Hurd, O. B. Eidson, Paul Heinz and Edward Rooney, all of Topeka, for the appellee.

William A. Smith, attorney-general, and Roland Boynton, assistant attorney-general, for the State Highway Commission.

Dawson J. Harvey, J., not sitting.

OPINION

DAWSON, J.:

This action was begun by Anthony L. Ruff, a taxpayer, to enjoin the board of county commissioners of Shawnee county from constructing a paved road on the south 66 feet of the 400-foot right of way of the Union Pacific railway for a distance of ten and a half miles from the city of Silver Lake through the city of Rossville to the western limits of Shawnee county.

It may help to an understanding of the transaction which led up to this lawsuit to refer briefly to certain more or less familiar matters of history, to certain acts of congress, and to certain judicial decisions. In 1862 and 1864 congress granted to the predecessors of the Union Pacific Railroad Company a right of way for a railroad over the public domain from the Missouri river to the Pacific ocean. (12 U.S. Stat. 489; 13 U.S. Stat. 356.) This right of way grant was 400 feet wide. In Kansas this grant crossed Shawnee county from east to west near the center of the county. The railway was constructed through the county about 1867. In close proximity and paralleling the railway, sometimes on one side of it and sometimes on the other, there is a well-travelled public road which has been in existence for half a century. It is familiarly known by various names--U. P. highway, Golden Belt highway, Victory highway, and by its latest designation, U.S. No. 40. Much of this road in Shawnee county is on the railway right of way, but not through express permission of the railroad company. In certain stoutly contested lawsuits, some of which arose over thirty years ago and the last of which was decided in 1912, it was conclusively determined that under the terms of the original congressional land grants for railway rights of way, the general rule of law creating prescriptive title by adverse possession did not apply, and that it was both the privilege and duty to the railway grantee to hold on to its right-of-way grants to meet possible future needs of transportation and its incidents. The effect of these decisions was to hold for naught all claims of right to whatever portions of its right of way were occupied or held adversely to the railway company by private persons or by the public itself. And thus it eventually developed that the public had no right or title to the land which this Shawnee county road had occupied for so many years. A multitude of situations of this sort throughout the states traversed by the Pacific railroads prompted congress to enact a statute, the Norris act, which took effect on June 24, 1912, and which provided that the congressional grants for railway rights of way would thereafter be subject to the local law of adverse possession in whatever state they were located. (37 U.S. Stat. 138.) The effect of this act on this particular road in Shawnee county was that unless the Union Pacific Railroad Company within fifteen years from June 24, 1912, should take some effective step to assert its paramount right and title, or obtain an acknowledgment thereof by some official body authorized to bind the public, the company would or might lose the land occupied by this road by the Kansas law of adverse possession.

Accordingly in 1916 the matter of occupancy of the Union Pacific right of way in Shawnee county became the subject of certain conversation between the attorneys for the railroad company and the board of county commissioners of Shawnee county, which at that time was engaged in making certain improvements on this road. The railroad representatives informed the board that it could recognize no right of occupancy of its property for highway purposes except that of sufferance. In 1922 the board of county commissioners set about the paving of a section of this road from a point about eight miles west of Topeka to the city of Silver Lake. The Union Pacific commenced an action in the district court asserting its ownership of the land on which the road improvements were to be made, and prayed for an injunction. The county board denied the ownership of the railroad company and alleged that it had a mere easement for railroad purposes, and that the public had an equal right to the use and occupancy of the land for highway purposes. In a consent decree it was adjudged--

"That the railroad company was the owner of a tract of land 400 feet wide, but further found and adjudged that the prayer of the petition be denied, 'with the condition and proviso that the laying and maintaining of said pavement shall not give to Shawnee county or to the public any title to the ground upon which said pavement is laid or any interest that can ripen into a title by user or that will interfere with the plaintiff in the use for railroad purposes of any portion of its right of way 400 feet in width, being 200 feet on each side of the center line of plaintiff's railroad track as now located along the lands in controversy herein, and upon the further condition and proviso that the laying and maintaining of said pavement shall not impair the title of the Union Pacific Railroad Company to its said full width of right of way.'"

In 1925 and 1926 the board of county commissioners instituted preliminary proceedings looking to the paving of that portion of the road which lies between Silver Lake and the west line of Shawnee county. At Silver Lake the road crosses the Union Pacific railway from south to north and runs west on the railway right of way for about two miles. It there recrosses the railway track to the south side and continues westward on the railway right of way for about four miles to Rossville at which place it crosses again to the north side of the railway and occupies the...