Sherman v. Sherman

• Decision Date: 26 June 1909
• Citation: 23 S.D. 486,122 N.W. 439
• Parties: ABBIE PHILLIPS SHERMAN et al., Plaintiffs and appellants, v. P. F. SHERMAN et al., Defendants and respondents.
• Court: South Dakota Supreme Court

23 S.D. 486, 122 N.W. 439 (1909)

ABBIE PHILLIPS SHERMAN et al., Plaintiffs and appellants v P. F. SHERMAN et al.,

Defendants and respondents

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed.

Boyce & Warren

Attorneys for appellants.

C. O. Bailey, W. S. Kenyon, J. M. Dickinson

Attorneys for respondents.

Opinion filed June 26, 1909.

McCOY, J.

This case comes to this court on appeal from Minnehaha county circuit court. There is no dispute about the facts. Both sides rely upon the findings of fact as found by the trial court. From such findings it appears: That the plaintiffs Abbie Phillips Sherman, Alice Phillips Wilcox, Flora C. Phillips, Charles A. Phillips, Rossie C. Phillips, and Josie L. Phillips were minors, domiciled in the county of Minnehaha in September, 11187, and that Hattie C. Phillips had been duly appointed the guardian of said minors, and that the said minors were at that time tenants in common with Annie C. Phillips of certain real estate situated in the city of Sioux Falls, and consisting of 5.86 acres, and being about 719 feet long and about 342 feet wide, and berng a little in excess of two ordinary city blocks. That in September, 1887, the Cherokee & Dakota Railway Company was a corporation duly organized and authorized to construct and operate and maintain a railway within the territory of Dakota, and that in September, 1887, the said railway company was engaged in the construction of a line of railroad from Cherokee, Iowa, to Sioux Falls, and that said Cherokee & Dakota Railway Company, being desirous of taking, holding, and appropriating the said parcel of land for station grounds, tracks, side tracks, and switches, entered into an, agreement with the plaintiffs to pay to plaintiffs the sum of $6,850, the then market value of the fee title of said parcel of land, and did then and by virtue of such agreement pay to plaintiffs the said sum of money, in full payment for all damages and claims whatsoever by reason of the taking, holding, and appropriating of said land by said railway company. That the said contract and agreement between plaintiffs and said Cherokee & Dakota Railway Company was evidenced by the following instrument in writing:

“Whereas, the Cherokee & Dakota Railway Company deem it necessary to take, hold, and appropriate for the purpose of station grounds, tracks, side tracks switches, and the location, construction and convenient use of its railroad but for no other purpose, the following described real estate, the property of Annie C. Phillips, Abbie C. Phillips, Alice C. Phillips, Flora C. Phillips, Charles A. Phillips, Rossie E. Phillips and Josie L. Phillips (being the two blocks above mentioned), and whereas, on the 18th day of October 1883, the undersigned Hattie C. Phillips, was, by the probate court of Minnehaha county, aforesaid, appointed the guardian of the persons and estate of all said minors and still is such guardian, and, whereas, said Annie C. Phillips, in her own right, and said Hattie C. Phillips, as such guardian of all said above-named minors, with the approval of the judge of the probate court of said county, which approval is appended to and made a part of this instrument, agreed with said railroad company upon the sum of $6,850 in full payment for all damages and claims whatsoever, in favor of said Annie C. Phillips. … and every of them by reason of the taking of said real property, and have settled with said railroad company for all said damages and claims for said sum of money, and whereas, said railroad company has, with authority, consent, and concurrence of said Annie C. Phillips, and with the approval of said judge of probate court, paid to said Hattie C. Phillips, as such guardian, for and on behalf of said Annie C. Phillips, and said minors, the said sum of money, and said Hattie C. Phillips as such guardian has accepted and received the same in full settlement of said damages and claims. Now this indenture, made this 26th day of Sept., 1887, between said Annie C. Phillips, in her own right, and said Annie C. Phillips, … each and all by said Hattie C. Phillips, their guardian, as aforesaid, parties of the first part, and the said Cherokee & Dakota Ry. Co., party of the second part, witnesseth: That the said parties of the first part, in consideration of the sum of $6,850, to them in hand paid, the receipt of which is hereby acknowledged, do hereby discharge and forever release the said Cherokee & D. Ry. Co., from all damages and claims whatsoever, on account of the taking, holding, and appropriation of said above-described land for the purpose aforesaid, but no other. In witness whereof, the said Annie C. Phillips, in her own right, and the said Hattie C. Phillips, as such guardian as aforesaid, have hereunto set their hands and seals the day and year last above written. Annie C. Phillips. [Seal.] Hattie C. Phillips, Guardian. [Seal.]”

And this instrument was duly acknowledged and thereafter duly recorded on December 12, 1887, and has appended and annexed thereto the approval of the said judge of probate court. That thereafter, during the year 1889, the said Cherokee & Dakota Railway Company conveyed all its right, title, and interest to the said premises to the Dubuque & Sioux City Railway Company, and that thereafter, about February, 1891, the said Dubuque & Sioux City Railway Company leased said premises to the Illinois Central Railroad Company, and that thereafter, in May, 1893, the Illinois Central Railway Company leased a part of said premises to defendants, who thereupon erected thereon a machinery warehouse used in and about the private business of defendants, and that defendants ever since h,ave and now still occupy said portion of said premises with their said warehouse. That none of plaintiffs have ever occupied said premises since September, 1887, since the making of said instrument. The plaintiffs brought this action to quiet title and to regain possession of the portion of said premises occupied by defendants with said warehouse, and to recover rents and profits. Judgment was entered in favor of defendants dismissing plaintiffs’ complaint upon the merits, from which judgment plaintiffs have appealed, and contend that such judgment is not supported by the findings of fact and is against law.

The vital question is: What was the effect of the said written instrument under the laws of the territory of Dakota in force at the time of its execution? Did said instrument pass an unconditional fee title or an easement only to the said Cherokee & Dakota Railway Company? Section 488, Rev. Civ. Code, was formerly section 2980, Comp. Laws, and was in force during the year 1887. This section, among other things, provided that every railroad corporation authorized to construct, operate, or maintain’ a railroad within this territory shall have power

“to acquire under the provisions of this act or by purchase, all such real estate and other property as may be necessary for the construction, maintenance and operation of its railroad, and the station, depot grounds, and other accommodations reasonably necessary to accomplish the object of its incorporation; to hold and use the same, to lease or otherwise dispose of any part or parcel thereof, or sell the same when not required for railroad uses, and no longer necessary to its use.”

Section 2999, Comp. Laws (section 507, Rev. Civ. Code), also provided as follows:

“Any railroad corporation may purchase and use real property for a price to be agreed upon with the owners thereof; or the damages to be paid by such corporation for any real property taken as aforesaid when not agreed upon, shall be ascertained and determined by the circuit court … in conformity with the provisions of the Code of Civil Procedure.”

Section 3002, Comp. Laws (section 508, Rev. Civ. Code), also provided:

“Whenever any railroad corporation shall take any real property as aforesaid, of any minor, … the guardian of such minor may agree and settle with said corporation for all damages for claims by reason of the taking of such real property, and may give valid releases and discharges therefor upon the approval thereof by the judge of the probate court.”

Under these sections of the Compiled Laws in force in 1887 a railway corporation might acquire real estate by two methods—by condemnation or by purchase—and the provisions of section 3002 were applicable to either method. It must be remembered at all times while considering this case that the Cherokee & Dakota Railway Company did not acquire the land in question by virtue of condemnation proceedings against the will and consent of the grantors, but by a contract of purchase, for a fixed price, which was the full market value of the fee, and which contract was entered into by plaintiffs, who were the grantors, freely and voluntarily; but, on account of the fact that some of plaintiffs at the time of the transaction were minors, the approval of the judge of probate became necessary in order to satisfy the provisions of section 3002. Neither do appellants contend that said railway company acquired said land by condemnation, or the exercise of eminent domain. In the reply brief appellants state: “Since in this case the voluntary grant was made no condemnation could have taken place, and consequently we are not interested in determining what title would have passed by condemnation proceedings.” The transaction was a grant based on contract of the parties, and from the language used in the instrument it was evidently the intention to transfer said land to said railway company under the power conferred on said railway corporation to purchase, take, hold, lease, and dispose of the same under the provisions of section 2980, Comp. Laws. That being the intention of the parties, then the instrument sould be construed in the light of these provisions of the law, as, under...