Smith v. Oregon Short Line R. Co.
| Decision Date | 07 March 1906 |
| Docket Number | 1677 |
| Citation | 84 P. 108,30 Utah 246 |
| Court | Utah Supreme Court |
| Parties | SMITH v. OREGON SHORT LINE R. CO |
APPEAL from Second District Court, Weber County; H. H. Rolapp Judge.
Action by Nicholas Smith against the Oregon Short Line Railroad Company. Judgment for plaintiff. Defendant appeals.
AFFIRMED.
P. L Williams for appellant.
APPELLANT'S POINTS.
We insist that the owner of the land at the time, and his grantee, the plaintiff, are by law estopped to recover the said lands. Upon this point we cite the court to the following cases: Hanlon v. U. P. Ry. Co. [Neb.], 58 N.W. 590; Campbell v. Indiana, etc. Rd. Co. [Ind], 30 A. & E. Rd., Cases, 304; Pryzbylowicz v. Missouri River Rd. Co., 17 F. 492; Waterworks Co. v. Kansas City, 65 F. 691; Texas & Pacific Ry. Co. v Scott, 77 F. 726; Hendrix v. Southern Ry. Co. [Ala], 23 A. & E. Rd. Cases, New Series 272; Chicago B. & Q. R. R. Co. v. Englehart [Neb.], 15 A. & E. Rd. Cases, New Series 404; Louisville & Nashville Rd. Co. v. Smith, 128 F. 1.
Occupancy and use of a strip of land by a railroad company, of roadbed, right of way and track and for the running of its trains, is sufficient notice of its equity to bind a purchaser from the original licensor. (3 Elliott on Railroads, sec. 949 and cases cited. Marble v. Whitney, 28 N.Y. 297; Railroad v. B. & M. Rd. Co., 4 F. 298; Roberts v. Nor. P. Rd. Co. 158 U.S. I.
In this case see especially the opinion of the court at pages 11 and 12. Milwaukee & Nor. R. Co. v. Strange, 63 Wis. 178; Taylor v. Chicago M. & St. P. Ry. Co., 63 Wis. 327; Maple Orchard Grove and Vineyard Co. v. Marshall, 27 Utah 215.)
M. D. Lessenger and A. E. Pratt for respondent.
1. This is an action in ejectment brought by respondent against the appellant. The findings show: That the respondent was the owner of a certain tract of land situate in Weber county. In 1874 the Utah Northern Railroad Company, a common carrier, entered upon the tract without objection or protest from the owner thereof, but without first obtaining his permission, and constructed its railroad thereon, and ever since, it and its successors operated the railroad without objection from any one. In 1897 the appellant acquired all the right, title, and interest of the Utah Northern Railroad Company in and to its property, including all its rights in and to its roadbed, and it ever since continued to use and operate the said railroad over and across the said land as a part of its railroad system, without objection. In 1890 H. E. Gibson, then the owner of the tract, erected fences, one on each side of the railroad track, for the purpose of keeping his stock from straying thereon. The fences were so maintained from the time of their construction until April, 1900, when the appellant broadened and raised its roadbed and ballasted its track, at which time it removed the fences, no objection being made thereto, nor permission being given so to do by the owner of the land or any one claiming to be such owner, and, at the same time, appellant, without the permission of the owner of the land, erected new fences, one on each side of the track, inclosing an additional strip of land four feet wide on one side and eight feet wide on the other, and ever since so maintained the fences and continuously and exclusively used the strip so inclosed for the purpose of its road without objection or protest until in March, 1903, when the land was conveyed by Gibson to the respondent, who thereupon demanded from appellant possession of the entire tract, and notified it to vacate the same. Judgment was given in favor of respondent for the restitution of the additional strips so taken and inclosed by the appellant in 1900, together with $ 75.00 damages for their unlawful detention from March, 1903, the time when the respondent became the owner of the land, to the time of trial. Judgment was given in favor of appellant for the remainder of the tract, and for the land as originally taken and as occupied at the time of, and prior to the fencing in of the additional strips.
2. The findings are not assailed. No error is assigned with respect to them. The assigned errors relate only to the conclusions of law, and these are all that can be reviewed by us. ( Crooks v. Harmon, 29 Utah 304, 81 P 95.) Upon the findings as made, appellant contends that it was entitled to the possession of not only the ground awarded it, but also to the additional strips fenced in by it in 1900; the possession of which was awarded to the respondent. Upon the findings as made the contention cannot prevail. Cases are cited by appellant to the effect, and it is urged by it that, when a railroad company has entered upon land with the consent or license of the owner, upon the faith of which permanent and valuable improvements have been made, or when the owner of the land has knowledge of the fact that the railroad company has entered his land and is proceeding to construct its road thereon, and remains inactive and permits it to expend large sums of money for such purpose and to make permanent and valuable improvements without...
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