Stuart v. Colorado Eastern R. Co.

• Decision Date: 03 January 1916
• Docket Number: 8229.
• Citation: 156 P. 152,61 Colo. 58
• Parties: STUART et al. v. COLORADO EASTERN R. CO.
• Court: Colorado Supreme Court

156 P. 152

61 Colo. 58

STUART et al. v. COLORADO EASTERN R. CO.

No. 8229.

Supreme Court of Colorado

January 3, 1916

Rehearing Denied April 3, 1916.

Error to District Court, City and County of Denver; George W Allen, Judge.

Action by Thomas B. Stuart and others against the Colorado Eastern Railroad Company. Judgment for defendant, dismissing the action, and plaintiffs bring error. Reversed and remanded with directions.

Stuart & Murray, of Denver, for plaintiffs in error.

Rogers Ellis & Johnson, Percy S. Robinson, and Pierpont Fuller, all of Denver, for defendant in error.

GARRIGUES J.

The purpose and object of this action is to compel payment for a strip of land taken and used as a right of way for a railroad over land commonly known as the Iliff tract situated in the county of Denver, to recover compensation for damages to the residue not taken, and payment for loss of the use of the land since the taking, occasioned thereby. Information upon the history of the tract and regarding the status of the title may be obtained by reference to the following cases Warren v. Adams, 19 Colo. 515, 36 P. 604; Adams v. Warren, 27 Colo. 293, 61 P. 609; People v. Carpenter, 29 Colo. 365, 68 P. 221; Harrison v. Cole, 50 Colo. 470, 116 P. 1123.

Stuart and Murray, plaintiffs below, plaintiffs in error, filed their complaint in this action in the district court at Denver, July 14, 1911, against the Colorado Eastern Railroad Company, defendant below, defendant in error, alleging in the first count that they and their grantors had owned the tract in dispute continuously for over 40 years, and plaintiffs became the sole owners of the fee in March, 1901; that defendant in 1894 wrongfully entered upon and took possession of a strip across the land as a right of way for its railroad, constructed a roadbed and laid its track thereon without permission from the owner and without any attempt to acquire the right of way by purchase, condemnation or otherwise, and still continues to use the strip so taken for that purpose; that about three acres are actually taken by the right of way, which cuts off a triangular piece of land, comprising about five acres, from the main body, thus damaging the remainder not taken; that the use of the land taken and the residue damaged, but not taken, has at all times, for a period of about 17 years, been wholly lost to plaintiffs, on account of the wrongful taking, which use is of the reasonable value of $1,360; that in another action begun April 24, 1906, in the state district court, at Denver, being No. 40590 on the docket of that court, in which plaintiffs, Stuart and Murray, were plaintiffs, and the defendant, the Colorado Eastern Railroad Company, was defendant, a decree was entered in March, 1908, quieting plaintiffs' title to all the land as against the defendant, the Colorado Eastern Railroad Company, and finally determining that it had no estate or interest in or right to any of the land, which decree was never appealed from, still stands unmodified, and is of full force and effect; that they repeatedly demanded compensation for the use of the land, but defendant has constantly failed to make payment therefor. The allegations of the second count are substantially the same as the first, except, instead of seeking to recover damages for the loss of the use of the land since the taking, plaintiffs ask payment for the value of the land actually taken and damages to the remainder not taken, occasioned by the taking. It alleges that the land is of the value of $600 per acre, and that plaintiffs' damage on account of the taking is $5,000; that they have repeatedly demanded payment therefor and urged upon defendant the necessity of either purchasing the land or commencing a condemnation proceeding, but that defendant refuses to do either and still continues to occupy and use the right of way; that plaintiffs are willing defendant shall continue to operate its road across the tract upon payment of just compensation for the land taken and for the damages occasioned by the taking.

The answer, among other things, denies that plaintiffs own an unincumbered title, and alleges that whatever title they have is subject to the right of way of defendant's railroad which comprises one instead of three acres, and was used by defendant and its grantors many years preceding the filing of the complaint and long before plaintiffs acquired any title; that since June 11, 1894, defendant had operated its railroad across the land, which, it alleges, was constructed over the tract in 1886-87 by another corporation, from which it purchased the railroad in 1894, and admits that ever since the purchase it has continuously used and occupied the right of way for railroad purposes; but whether its predecessor constructed the railroad across the land, without having first obtained the consent of the owner, it does not know, and has not and cannot obtain sufficient knowledge or information upon which to base a belief; denies that a decree was entered in another action pending in the district court of Denver in which Stuart and Murray were plaintiffs and the present defendant, the Union Pacific Railroad Company, and the Kansas Pacific Railway Company were defendants, quieting the title to all or any portion of the land as against the present defendant. Further answering, with regard to the alleged former decree, defendant alleges that April 21, 1906, plaintiffs herein did institute the action, being No. 40590, in the state district court at Denver, as alleged, in which the present defendant, the Union Pacific Company, and the Kansas Pacific Company were joined as defendants; that May 11, 1906, the Union Pacific Company obtained an order of removal of the cause to the federal Circuit Court, and that it has never been remanded to the state court, but, on the contrary, the federal Circuit Court denied plaintiffs' motion to remand the cause and retained jurisdiction over it, and thereafter such further action was taken that the cause against the Union Pacific was tried in the federal Circuit Court upon its merits, and a judgment rendered against plaintiffs and in favor of the other defendant therein, so removing the cause; that from this judgment an appeal was taken to the federal Circuit Court of Appeals, which affirmed the judgment; that a writ of certiorari was then sued out of the Supreme Court of the United States to review this judgment, and the cause is now pending in that court; that upon removal of the cause by the Union Pacific from the state court to the federal court the state court lost and ceased to have any further jurisdiction over the cause, over any of the parties thereto, and over the subject-matter, and that any and all proceedings thereafter taken in the cause in the state court, including this pretended decree quieting title in 1908, were without jurisdiction and beyond the power of the court, and the pretended decree is void because entered after the cause was removed to the federal court; admits, however, that the decree has never been appealed from or modified. Defendant further alleges that on and prior to January 5, 1887, the Denver Railroad, Land & Coal Company claimed to own a right of way for its railroad over the land, and was in open, notorious, exclusive, and adverse possession, use, and occupation thereof, which it claimed for railroad purposes, and on the date aforesaid, to secure an indebtedness, it conveyed all its railroad property, including the right of way, to the Knickerbocker Trust Company by a mortgage deed which, June 11, 1894, default having been made in its terms and conditions, was duly foreclosed, and all the property and right of way conveyed by trustee's deed to one Bernard J. Burke, who, on the last-mentioned date conveyed it, including the right of way, to defendant; that the instruments effecting the transfers were duly recorded on or about the respective dates thereof, and all the property, including the right of way, was accepted and received by defendant in good faith, for value, under claim and color of title, and defendant has ever since been in the open, notorious, exclusive, and adverse possession of all the property, and has ever since operated the railroad across the right of way; that so much of the first cause of action relating to the use of the land as accrued at any period six years prior to bringing the action, is barred by the six-year statute of limitations; that the land was originally taken for a railroad right of way by the Denver Railroad, Land & Coal Company as early as 1886-87, and that any cause of action on account of such entry and taking accrued more than six years prior to the commencement of the action and is barred by the six-year statute of limitations.

By way of what plaintiffs term an affirmative replication, they allege that April 24, 1906, they began a code action to quiet title in the state district court at Denver--being No. 40590 mentioned in the complaint and answer--against the Union Pacific Company, the Kansas Pacific Company, and the present defendant, the Colorado Eastern Railroad Company, in which they alleged they owned in fee simple all the tract and that defendants each claimed an adverse estate or interest therein, which were all unfounded, that neither defendant had any title, claim, estate, or interest in or right to any portion of the land, and prayed a decree quieting their title thereto against each defendant; that the Union Pacific Company alone filed a petition for removal of the cause to the federal Circuit Court, and May 11, 1906, the order of removal was entered; that upon plaintiffs' motion to remand to the state court, upon the ground that the removal had been obtained by and affected only the cause against the Union...