Salt Lake Inv. Co. v. Oregon Short Line R. Co.

• Decision Date: 01 December 1914
• Docket Number: 2622
• Citation: 46 Utah 203,148 P. 439
• Court: Utah Supreme Court
• Parties: SALT LAKE INV. CO. v. OREGON SHORT LINE R. CO

148 P. 439

46 Utah 203

SALT LAKE INV. CO. v. OREGON SHORT LINE R. CO

No. 2622

Supreme Court of Utah

December 1, 1914

Rehearing Denied May 8, 1915.

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by the Salt Lake Investment Company against the Oregon Short Line Railroad Company to recover compensation for the taking of private property for public use with counterclaim to quiet title.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED, with directions to set aside the judgment, and to enter judgment in favor of the defendant quieting its title.

P. L Williams, Geo. H. Smith and H. B. Thompson for appellant.

M. E. Wilson and E. A. Walton for respondent.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This is an action, as stated by appellant in its brief, "to recover compensation for the taking of private property for public use." It is charged in the complaint:. That the plaintiff is the owner and entitled to the possession of the property, fully described, containing about one acre of land situate in Salt Lake City and county. That at the time of the taking there was on the land a flowing spring discharging hot mineral water of the value of $ 20,000. And "that on or about the 1st day of April, A. D. 1906, the defendant, without right or authority of law, and without instituting any eminent domain or condemnation proceedings, and without the consent of the plaintiff herein, entered upon said land above described and occupied the same, and from time to time proceeded to and did dump great quantities of earth, rock, gravel and other substances upon said land, and constructed upon certain portions of the same its railroad tracks, and proceeded to and did occupy the said land, and still does occupy the same for the purpose of operating its railroad over and upon said land. That in dumping said earth, rock, gravel and other substances upon said land, and in constructing said railroad tracks thereon, and in continuing to occupy the same, as aforesaid, the defendant has absolutely destroyed and prevented the flow of water from said spring, and has absolutely destroyed the existence of said spring in such manner as to cause the waters naturally arising and flowing out of said spring to seek other channels and not to arise upon the aforesaid lands of the plaintiff hereinbefore described. And that in its occupation of said land as aforesaid the defendant has thereby wrongfully appropriated said land to its own use and benefit. And that, by reason of the matters and things herein stated and said wrongs done and committed by the said defendant, plaintiff has been damaged in the sum of $ 20,000."

The defendant, by its answer, admitted entering upon and taking possession of the land for railroad purposes, at about the time alleged in the complaint, without the consent of the plaintiff and without the institution of eminent domain or condemnation proceedings; and alleged that it continuously and exclusively thereafter occupied, possessed, and used it for such purposes. It denied plaintiff's title and right of possession and alleged the action barred by statute of limitations. It further, by way of counterclaim, pleaded title in itself, and alleged that neither the plaintiff nor its grantor or predecessor was seized or possessed of the premises within seven years before the commencement of the action; and prayed the title quieted in it.

The case was tried to the court and a jury. The court itself, on the evidence adduced, determined and adjudged that the plaintiff, and not the defendant, was the owner of the property at the time of the alleged taking and that the action was not barred. It, upon instructions, submitted the case to the jury to determine "the compensation, if any, the defendant should pay the plaintiff for the tract of land" in controversy. This was the only question submitted to the jury. They rendered a verdict in favor of the plaintiff for $ 4,000.

The defendant appeals, and urges that the action is barred; that the defendant has, but the plaintiff has not shown title; and that error was committed by permitting certain witnesses to express opinions as to value.

The evidence shows the entry and taking to have been in March or April, 1906. The action was commenced in December, 1912, more than six and less than seven years from the taking. The contention is first made that the action is barred by provisions of Comp. Laws 1907, Section 2877, Subdiv. 2, which provide that "an action for waste or trespass of real property" must be commenced within three years. And, if that section is held not applicable, then the further claim is made that the action is barred by the provisions of Section 2883, which provide that "an action for relief not hereinbefore provided for must be commenced within four years." The complaint is broad enough to recover on the theory stated by the appellant, "compensation for the taking of private property for public use." The case was tried by both parties, and was without objection submitted to the jury, on that theory. The pleadings admit a taking for a public use and an exclusive and continuous occupation and possession, without the consent of the plaintiff and without the institution of eminent domain or condemnation proceedings. We think in such case neither section referred to is applicable, but that the provisions of Section 2860 requiring actions or defenses founded on realty to be commenced within seven years are. By those provisions the action is not barred. Our Constitution and statute require compensation to be first made for private property taken for public use; and, where property is entered upon and appropriated to public use without complying with the law, the owner may waive the tort and sue for his just compensation. In such case the action is not barred, except by adverse possession for the required period, here seven years. 2 Lewis, Em. Domain (3d Ed.), Sections 889, 967; Tucker v. Chicago, St. P., Minn. & Omaha R. Co., 91 Wis. 576, 65 N.W. 515; Lehigh Valley R. R. Co. v. McFarlan, 43 N.J.L. 605; McFarlan v. Morris Canal & Banking Co., 44 N.J.L. 471; Hannum v. Borough of West Chester, 63 Pa. 475; Stauffer v. E. Stroudsburg Boro., 215 Pa. 143, 64 A. 411; Galway v. M. E. R. Co. et al., 128 N.Y. 132, 28 N.E. 479, 13 L. R. A. 788; In re Clark v. Water Commissioners, 148 N.Y. 1, 42 N.E. 414; Land v. Railroad, 107 N.C. 72, 12 S.E. 125; Utley v. Railroad Co., 119 N.C. 720, 25 S.E. 1021.

We see nothing in the cited cases of Stockdale v. Railroad, 28 Utah 201, 77 P. 849, Morris v. Railroad, 36 Utah 14, 102 P. 629, and O'Neill v. San Pedro, etc., R. Co., 38 Utah 475, 114 P. 127, which makes against this. Contrary holdings seemingly have been made in other jurisdictions, prominent among them being California and Michigan. Robinson v. So. Cal. Ry. Co., 129 Cal. 8, 61 P. 947; Williams v. So. P. R. Co., 150 Cal. 624, 89 P. 599; Wood v. Railroad Co., 90 Mich. 212, 51 N.W. 265. There it has been held that an action to recover damages for the wrongful entry and construction of a railroad without proceedings for condemnation and without the owner's consent is barred by the provisions of the statute prescribing the time in which an action for trespass to real property must be commenced, which, in this jurisdiction, is three years. We think the former are more in harmony with legislative intent, and that the statutes applicable to a recovery such as here--compensation for a taking of real property--are those relating to real actions and rights in and to real property. It would seem when one, without the consent of the owner and without legal proceedings or process, enters upon and takes real property, exclusively occupies and possesses it as his own, and permanently appropriates it to his own use and deprives the owner of all rights in or uses to it, he has done something more than the commission of a mere trespass; he has unlawful seized, exclusively possessed, and permanently taken it.

A witness for the plaintiff, after showing that he had been in the real estate business at Salt Lake City for twenty years or more engaged in buying and selling real estate, that for fifteen or eighteen years he had been acquainted with the land and spring in question and other lands and springs in that vicinity that he knew of sales that had been made of lands upon which were hot springs, and after describing the land and the spring, the character, quality, and volume of water discharged from it, and its situation with respect to other springs, including what is known as Beck's Hot Springs and the Warm Springs, was asked by plaintiff's counsel:

"I will ask you from your experience and acquaintance with the land in question, and from lands in and about Salt Lake City and the real estate market generally you would have--you could form a somewhat accurate opinion relative to the value of the land described in the complaint and having situated thereon this spring that you have described."

This was objected to by the defendant's counsel upon the ground "that no proper foundation has been laid, it not appearing that the witness is familiar with any purchases or sales or values at the time that is material in issue." The objection was overruled, and the witness answered, "Yes, sir." Then, after further showing by him the beneficial and commercial uses to which waters of the character of the spring in question and in that vicinity could be and had been devoted, he was further asked by plaintiff's counsel:

"Taking into consideration the fact that there is about an acre of ground described in this complaint, and that it had situated on it this spring known as the Hobo Spring bubbling forth this flow of water that you have...