Sweeney v. Montana Cent. Ry. Co.
| Decision Date | 01 August 1901 |
| Parties | SWEENEY v. MONTANA CENT. RY. CO. |
| Court | Montana Supreme Court |
Appeal from district court, Cascade county; J. B. Leslie, Judge.
Action by Patrick Sweeney against the Montana Central Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.
This cause is on appeal from the order of the district court denying a motion for a new trial and from the judgment for plaintiff. The action is for damages resulting from trespass. Plaintiff, in 1891, was the owner, by virtue of a mineral location, of a tract of land called the "Nellie L Claim," at Neihart, Cascade county. In that year the defendant company started condemnation proceedings in the district court to condemn a strip of ground 80 feet wide across the claim. Without paying or tendering to the plaintiff or any one any money or other consideration, and without paying into court anything at all, an order was obtained by the company admitting it to possession of the property sought to be condemned, and providing, among other things, that during the pendency and until the conclusion of the proceedings all actions and proceedings against the plaintiff on account thereof "be, and the same are hereby, stayed." Belt creek, at the time, passed through the claim, as well as through other pieces of property belonging to other persons. The company, under the order mentioned, went upon the plaintiff's land, and excavated a new channel for the creek, and by means of a dam built in the creek, on what was known as the "Graham & Hollowbush Claim," a short distance from and above plaintiff's land, diverted the waters into the new channel. This work was completed about November 1, 1891. Plaintiff entered the claim at the United States land office on December 28, 1891. The village of Neihart was incorporated on December 4, 1891. On the 2d day of January, 1892, plaintiff conveyed his claim to one Condon. It is understood between the parties that this deed was for the purpose of procuring a better price for the 80-foot strip from the commissioners in the condemnation proceeding, as plaintiff's relations with one of them were not as friendly as were those of Condon, the deed being in fact in trust for plaintiff. On March 24, 1892, Condon conveyed, acting for plaintiff and with his advice and consent, a 40-foot strip of the said claim to the railway company, in fee, to be used as a way for railroad purposes such strip embracing only a very small corner of the 80-foot strip. After the deed was made, the company abandoned the condemnation proceedings, and notified plaintiff of such abandonment. After the delivery of the deed for the 40-foot strip, Condon reconveyed the remainder of the land to plaintiff.
Plaintiff contends that the order made permitting defendant to enter the land was void, and that the entry, the digging of the new channel on his land, and the turning of the water into it were a trespass, and operated to materially lessen the market value of the property. Defendant, in the brief of former counsel, claims that, though the act of changing the course of the stream was originally a trespass, no action can be maintained for damages on account thereof, by reason of the fact, as counsel say, that the plaintiff, through his trustee, Condon, ratified and adopted defendant's acts took the benefit thereof, and received from defendant compensation on account thereof, by selling and conveying to defendant the 40-foot strip, extending, as it does, across the old channel, without reserving a right to return the creek to the old bed, and, further, that the plaintiff is by the deed estopped from claiming damages. The deed contained the following: "And said first party hereby releases to said second party any and all claim for any damages that may arise or be caused to the land adjoining such railroad, on either side thereof, in consequence of the use of said premises for its said road." This case was heard and decided upon a former appeal, being reversed, a statement of the case being made in the opinion. 19 Mont. 163, 47 P. 791.
The principal questions arising upon the present appeal relate to the correctness of certain rulings of the court upon the admissibility of evidence, the refusal of the court to grant a nonsuit or direct a verdict for the defendant, and upon certain instructions given and others refused.
Present counsel for defendant, in oral argument and in his brief very ably contends that the order was not void, for that the owner waived the right to exact prepayment for damages, and that the complaint does not state a cause of action in trespass quare clausum fregit, and is fatally defective, for the reason that it does not show forth that defendant's entry was wrongful. He claims that defendant owner, in the condemnation proceedings, waived his constitutional right to demand compensation before the company took possession under the order of the court, by failing to make seasonable demand for it, and by his appearing and answering in the condemnation proceedings. The order of the court, permitting the company to enter upon the land, was made ex parte, and without notice.
A. J. Shores and I. Parker Veazey, for appellant.
T. E. Brady, Clayberg & Gunn, and N.W. McConnell, for respondent.
MILBURN, J. (after stating the facts).
The appellant makes 21 assignments of error. We shall consider only those depended upon in the argument of appellant's counsel.
During the trial, at the close of the testimony for the plaintiff, the defendant moved the court "that the action be dismissed on the ground that by the sale and conveyance to the defendant of the 40-foot strip of ground for a right of way across the Nellie L. lode claim, shown by the evidence to have been sold and conveyed, the plaintiff is estopped from making any claim for damages done, if any were sustained, by the change in the course of the stream, and that the execution and delivery of such conveyance operated to destroy any right of action for the previous trespass, if any such existed." The motion was denied, and defendant excepted. Did the making and delivery of this deed, or the waiver of damages expressed therein, estop the plaintiff to the extent claimed by defendant? We think not. More than one-half of the argument in appellant's brief is upon the subject of the said conveyance and its effect upon plaintiff's case. The argument is made with that close and able reasoning which characterizes counsel, but, in our opinion, it proceeds upon a theory which does not apply to the facts or the law of this case. Counsel cites Roberts v. Roberts, 55 N.Y. 275; Lampman v. Milks, 21 N.Y. 506; McCarty v. Railroad Co. (Minn.) 17 N.W. 616; Radke v. Railway Co., 41 Minn. 350, 43 N.W. 6; McDonald v. Railway Co. (Cal.) 35 P. 643. We do not find any of these in point. In Roberts v. Roberts it was the owner of the land who had permanently changed its condition by effecting an advantage to one part and burdening another, and the court held that upon a severance the respective owners held the land according to such changed conditions; there being, of course, no damage ever done by any one to the said owner. In reason and justice, and upon old and very respectable precedents, which have always been cited with approbation (see opinion in Lampman v. Milks, supra), the court was correct. The difference between the case at bar and that of McCarty v. Railway Co. is that the latter was a suit for damages for obstructing the flow of water by a railway embankment for the building and maintenance of which plaintiff had sold a certain strip of land; the case at bar, one for completed trespass committed on another part of the land, a considerable time before the conveyance of the strip across the old channel. In Radke v. Railway Co., the court held that no right of action lay for damages subsequently caused by a bad culvert in the railway embankment built upon land entered upon by the railway company without right, but subsequently conveyed by the owner to the company with the bad culvert then in said embankment. In McDonald v. Railway Co., the owner by deed conveyed to the company a right of way for the track "as the same is now located, constructed, and operated," and expressly waived all damages by reason of the construction and operation of the same, and acknowledged "payment for damages for any injury caused by the construction of said railroad in front of his property" on a certain street; the suit being for damages resulting from an overflow of plaintiff's property caused by a certain bridge which choked the channel of a stream of water, the bridge being the same that was on the right of way at the time of the conveyance to the railway company.
The suit in the case at bar is for damages recoverable for trespass upon a relatively large tract of land, part of which was afterwards conveyed to the defendant, the trespass being complete as of November 1, 1891, before the making and delivery of the deed of conveyance for the part. The deed to the defendant company must be considered exactly as if it had been to a third party, a stranger to the trespass. It conveyed part of a tract alleged by the plaintiff to be then damaged land. The chose in action in trespass was not conveyed any more than if the deed had been made to a stranger. The waiver of damages set forth in the instrument of conveyance is obviously and manifestly for such damages as might come from the use of the strip as a way for the road. If it was intended to say that the company was released from all claim for damages for trespass resulting from the unlawful entry upon the property of plaintiff when it went upon the premises and dug a large ditch upon another part of the land, it would have been...
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