Town of Glenrock v. Chicago & N.W. Ry. Co., s. 2636

• Decision Date: 23 March 1955
• Docket Number: Nos. 2636,2637,s. 2636
• Citation: 73 Wyo. 385,281 P.2d 455
• Parties: TOWN OF GLENROCK, a Municipal Corporation, Plaintiff and Respondent, v. CHICAGO & NORTH WESTERN RAILWAY COMPANY a Corporation, Defendant and Appellant. TOWN OF GLENROCK, a Municipal Corporation, Plaintiff and Appellant, v. CHICAGO & NORTH WESTERN RAILWAY COMPANY, a Corporation, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 455

281 P.2d 455

73 Wyo. 385

TOWN OF GLENROCK, a Municipal Corporation, Plaintiff and Respondent, v. CHICAGO & NORTH WESTERN RAILWAY COMPANY a Corporation, Defendant and Appellant.

TOWN OF GLENROCK, a Municipal Corporation, Plaintiff and Appellant, v. CHICAGO & NORTH WESTERN RAILWAY COMPANY, a Corporation, Defendant and Respondent.

Nos. 2636, 2637.

Supreme Court of Wyoming.

March 23, 1955.

Joseph Garst, Douglas, R. D. Neely, H. B. Otis, Omaha, Neb., for Town of Glenrock.

Edger Vanneman, Jr., Nye F. Morehouse, Chicago, Ill., for Chicago & N. W. R. Co.

HARNSBERGER, Justice.

The railway company's petition for rehearing and its brief in support thereof, charges that we have misconceived undisputed evidence which is said to establish a time long in advance of the necessary period when adverse possession was asserted. Notwithstanding we felt that close attention and careful consideration had already been given to all the evidence in the record, the testimony of each witness was again examined, giving particular attention to that portion to which reference was made in the rehearing brief. We are unable to discover either directly or by just inference where any witness specified any time when the claimed adverse possession might be said to have commenced. Although counsel attempts to amplify statements of appellant's witnesses by asserting that such testimony referred to certain times or periods, this does not serve to change the fact that the witnesses themselves did not specify or fix any such dates or times, nor were they called upon to do so. Neither, in our opinion, does stipulated evidence that original occupation of the right of way was under Congressional Grant, constitute 'uncontrovertible proof' or any proof at all that the railway company was claiming title in fee by adverse possession, as against the town, the only party reached by the judgment. We suggest it is not the court, but appellant's counsel who misconceive the evidence.

The appellant also attempts to reargue the contention that its title to the right of way was a fee title good as against 'all possible interested parties' and all defendants originally named in the action. This court has previously pointed out that when the reason advanced for a rehearing is simply re-argument and repetition of counsel's views which have already received consideration, we will decline to re-travel those paths. Owl Creek Irrigation District v. Bryson, 71 Wyo. 30, 70, 80, 253 P.2d 867, 258 P.2d 220, 224.

However, if counsel do not understand what was meant when we noted that--'From statements made by the court and tacitly acquiesced in by counsel, the jurisdictional limit of the decree authorized as being within the scope of the issues presented, was recognized as being one which would determine only as between themselves the respective rights of the town and the railway company', we may say that counsel will not be permitted to repudiate or withdraw from a commitment made in open court during the trial of a cause.

In the course of the trial and before rendition of judgment, the Court observed in part:

'* * * I do not know how many parties counsel says are involved in this lawsuit. We only have two of them in Court here at the present time, so I take it that the Court's decision in this matter is limited to these two litigants.'

To which Mr. Neely, one of appellant's counsel, replied:

'I would think so, Your Honor.'

Then the court said:

'In determining the question of ownership or title the Court's decision could not reach beyond the two parties, * * *'.

This understanding was recognized in the decree itself, which provided,--'It is specifically ordered that the names of all Defendants named in the original petition not involved in the issue herein...