St. Louis & San Francisco Railroad Company v. Ruttan

• Decision Date: 19 April 1909
• Citation: St. Louis & San Francisco Railroad Company v. Ruttan, 90 Ark. 178, 118 S.W. 705 (Ark. 1909)
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. RUTTAN
• Court: Arkansas Supreme Court

118 S.W. 705

90 Ark. 178

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. RUTTAN

Supreme Court of Arkansas

April 19, 1909

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge affirmed.

Affirmed.

W. F Evans and B. R. Davidson, for appellant.

1. The element of adverse or hostile holding is lacking in this case. The possession, to be adverse, must be hostile and not subservient to the rights of the true owner. 42 Ark. 118; 54 Ark. 608; 65 Ark. 422; 76 Ark. 405; 43 Ark. 469; Id 504. The deeds were no notice to appellant, and would not have been, even if they had not excepted the right of way, since the holding was consistent with appellant's rights if not interfering with the operation of the road. 55 Ark. 104; 69 Ark. 562; 3 Am. & Eng. R. Cas., N. S., 342; 28 Id. 562.

2. A railroad company is under no duty to use the full width of its right of way until the needs of the company demand it, and nonuser is no evidence of abandonment. 69 Ark. 562; 37 Ind. 294; 57 Ia. 675; 91 N.Y. 561; 112 Mass. 224; 29 Ia. 276; 140 Mass. 472; 7 O. St. 1.

Sam R. Chew, for appellee.

1. The statute of limitations makes no exception in favor of railroad corporations, and the courts can make none. 64 Ark. 64; 67 Ark. 84; 41 Ark. 45; 84 Ark. 52. Independently of his deed, appellee, under the agreed statement of facts, has acquired title by limitation. 61 Ark. 527; 59 Ark. 626; 61 Ark. 575; 23 Ark. 336; 48 Ark. 312; 38 Ark. 18; 83 Ark. 534.

2. The parties here deraign title from a common source. If appellant only bought an easement, this was a dominant estate which could be defeated by actual entry and adverse holding for the prescribed time. 18 N.E. 301; 24 So. 536; 69 Ark. 502; 94 Ky. 313; 44 S.W. 359.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellant railroad company against appellee to recover possession of a strip of land in the city of Van Buren, Arkansas, originally embraced in the right of way conveyed to the company in the year 1882 by the then owners of the land, Cyrus Lomax and Oliver Maxey. The grant to the railroad company conveyed a strip one hundred feet wide through lots 1, 2 and 3 of block 20 in the city of Van Buren, and the company proceeded to lay the main track of its railroad in the center of the right of way thus granted. Lomax and Maxey thereafter executed to one Miller deeds conveying said lots, "except that part upon which the track of the St. Louis & San Francisco Railroad Company is laid;" and in 1893 Miller took possession of the land in controversy and held it until he conveyed it to Mary Carter, who in turn conveyed it in 1896 to appellee. It is agreed that appellee and his grantors, Miller and Mary Carter, before him have held actual, open and continuous possession of the strip of land in controversy, claiming to be the owners thereof, since the year 1893. The strip in controversy is inclosed, with the remainder of appellee's premises, by a fence running parallel with the railroad track, and this particular part has, during the period of time described above, been cultivated as a garden. It is also agreed that the officials and employees of the railroad company knew that the strip in controversy was fenced and in actual occupancy of appellee and his grantors, but had no actual notice that they claimed ownership. On these facts the trial court, sitting as a jury, rendered judgment for appellee on his plea of the statute of limitations, and the company appealed.

It is contended that the right of way of a railroad company rests upon a different principle from real estate in general, and that, inasmuch as the company is not compelled to actually use the full width of its right of way until the needs thereof should demand, the statute of limitations will not commence running unless there be actual, adverse occupancy and actual notice of the hostile claim be given to the company. The statute of limitations operates against, railroad corporations whose lands are held adversely as well as against individuals; and this applies to the right of way. Graham v. St. Louis, I. M. & S. Ry. Co., 69 Ark. 562, 65 S.W. 1048; Ill. Cent. Rd. Co. v. Houghton, 126 Ill. 233, 18 N.E. 301; Paxton v. Yazoo & M. V. Rd. Co., 76 Miss. 536, 24 So. 536.

The fact that the company is not compelled to use the full width of its right of way within a particular time, and that nonuser of the entire right of way is not conclusive evidence of its abandonment of the unused portion, may alter the character of proof upon which adverse possession is to be determined; but after all, as in other cases wherein the question arises, it becomes purely a question whether or not the possession is adverse and has, either actually or by necessary implication, been brought to the attention of the company. This court, in Little Rock v. Wright, 58 Ark. 142, 23 S.W. 876, speaking of the application of the doctrine of adverse possession against a city, said: "What is adverse possession? No possession consistent with the right of the true owner can be adverse to him. In this case the land was dedicated to public use for streets, but it remained inclosed and obstructed after the dedication. The city had the right to postpone the removal of the obstructions and the opening of the streets until such time as its resources permitted and the public necessities demanded." In that case the adverse possession was asserted against the city by the heirs of the dedicator, and the court held that the occupancy was not inconsistent with the rights of the city, and did not become hostile until actual notice of the hostility of the claim was brought to the attention of the city.

The doctrine of that case has been recognized in many subsequent decisions of this court....