The Atchison v. Conlon

Citation63 P. 432,62 Kan. 416
Decision Date05 January 1901
Docket Number11,851. [*]
CourtUnited States State Supreme Court of Kansas
PartiesTHE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. ANNA CONLON et al

Decided January, 1901.

Error from court of appeals, northern department; JOHN H. MAHAN ABIJAH WELLS, and SAM'L W. MCELROY, judges.

Judgment reversed and granted.

A. A Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error.

Charles J. Conlon, for defendants in error.

OPINION

SMITH, J.:

This was a suit brought by the railway company to enjoin the owner of a farm through which its road runs from removing, breaking down and opening the fences enclosing the right of way. The facts may be briefly stated: The farm consists of about 200 acres. In August, 1864, the Atchison & Pike's Peak Railroad Company condemned a right of way 100 feet wide over and through it. Thereafter the Central Branch Union Pacific Railroad Company became the successor of the Atchison &amp Pike's Peak road and acquired said right of way, and has ever since run its trains over it. At the time this 100-foot strip was so condemned the real estate was owned by James Baldwin. Under the law as it then existed, the railroad company acquired a fee-simple title to the land taken by condemnation for right of way. (Laws 1864, ch. 124; K. C. Rly. Co. v. Allen, 22 Kan. 285.) In September, 1870, James Baldwin sold the farm to James Conlon, with the following exception contained in the deed: "The right of way has been given to P. P. railroad by said Baldwin." In June, 1872, James Conlon conveyed to William Bowen with the same recital in his deed. On July 26, 1872, Bowen deeded the land to Anna Conlon by similar conveyance.

In 1872 the Atchison, Topeka & Santa Fe Railroad Company, of which plaintiff in error is the successor, acquired by condemnation a strip of land 42 1/2 feet wide on the south side of, and within, the 100-foot strip formerly acquired in fee by the Atchison & Pike's Peak Railroad Company. The Santa Fe road was built in 1873. Before the latter took possession of the 42 1/2-foot strip condemned, the Central Branch Union Pacific railroad had put in a plank crossing over its rails for the accommodation of Mrs. Conlon, and at about the same time fenced the track, but provided gates through which the owner of the land might go from one part of her farm to the other. Immediately after constructing its road over the land, in 1873, the Santa Fe company laid a crossing of planks over its track and ties directly south of the crossing put in by the Central Branch company, and corresponding therewith. This crossing was maintained by the plaintiff in error and its predecessor from the time mentioned until May, 1897. In 1882 the Santa Fe company enclosed its right of way with a lawful fence and built therein gates opposite the crossing.

This crossing has been in use by the owner of the farm since the construction of the railroads, principally for driving cattle from the north to the south side of the land, and vice versa. In February, 1897, the railway company notified Mr. James Conlon, the husband of Anna Conlon, that unless the gates were kept closed, except when in actual use, they would be taken out and the openings shut. In May following, the company caused the gates to be nailed up and the crossing removed, notifying Mr. Conlon of its action. Thereupon the latter cut down the wires and left the space open where the gates were located.

In her answer and cross-petition the defendant below claimed a prescriptive right to use and enjoy the crossing, and the district court found that she was the owner of and entitled to a right of way across the right of way of plaintiff under such title. This judgment was affirmed by the court of appeals. After the commencement of the suit in the court below Anna Conlon died, and the action has been revived in the name of her heirs.

It is claimed by counsel for defendants in error that the crossing over the railroad-tracks was indispensable to the use of the farm and constituted a way of necessity. It is unnecessary to dwell on this contention. When James Conlon bought the land his grantor excepted in his deed the 100-foot strip, the fee of which had been taken from him by condemnation proceedings. The grantee obtained no title to it. He was in the same situation as if Baldwin, the grantor, had made two deeds, one to the land on the south and the other to the land on the north of the right of way. Conlon's deed to William Bowen contained the same exception. The conveyance to Anna Conlon by Bowen also excepted the 100-foot strip. She bought land situated on both sides of a railway, with a fee-simple proprietor owning an estate between the two tracts at the time she took title. No rule of law will permit her to assert a dominant estate, from necessity, in any part of the intervening property.

The question remains whether, under the circumstances of this case, a prescriptive right to the crossing was obtained by a use of the same for more that fifteen years. The testimony shows that the railroad company made, in the first instance and maintained during all the time of its use, a crossing of planks and earth suitable to the requirements of...

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19 cases
  • Keiler v. McDonald
    • United States
    • Idaho Supreme Court
    • July 31, 1923
    ... ... 941.) ... Use ... under permission never ripens into title. (Phoenix Ins ... Co. v. Haskett, 64 Kan. 93, 67 P. 446; Atchison, T ... & S. F. Ry. Co. v. Conlon, 62 Kan. 416, 53 Am. St. 781, ... 63 P. 432; Friday v. Henah, 113 Iowa 425, 85 N.W ... 768; Lambe v. Manning, ... ...
  • McIlquham v. Anthony Wilkinson Live Stock Company
    • United States
    • Wyoming Supreme Court
    • October 5, 1909
    ... ... Mere use ... under a naked license, however long continued, cannot ripen ... into a prescriptive right. (Ry. Co. v. Conlon, ... (Kan.) 63 P. 433.) Hence no prescriptive right was ... gained by the plaintiff through the wandering of his cattle ... over the defendant's ... considered in this case. "Mere use under a naked ... license, however long continued, cannot ripen into a ... prescription." (Atchison, T. & S. F. Ry. Co. v ... Conlon (Kan.), 62 Kan. 416, 63 P. 432.) ... The ... right to a way of necessity is based upon the theory of an ... ...
  • Ruff v. The Board of County Commissioners of Shawnee County
    • United States
    • Kansas Supreme Court
    • December 8, 1928
    ... ... only, and not hostile or adverse so as to confer title. To ... the same effect were Railway Co. v. Conlon, ... 62 Kan. 416, [127 Kan. 198] 63 P. 432; Railway Co. v ... Watson, 74 Kan. 494, 87 P. 687; Railroad Co. v ... Davenport, 102 Kan. 513, ... ...
  • Dotson v. The Atchison
    • United States
    • Kansas Supreme Court
    • February 12, 1910
    ...be shown to be permissive only, no right to use it is conferred, though the use may have continued for a century, or any length of time'" (p. 420), and farther it was remarked that "mere use under a naked license, however long continued, can not ripen into a prescriptive right." (Page 421.)......
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