Union Pac. Ry. Co. v. Cook

• Decision Date: 23 October 1899
• Docket Number: 1,198.,1,197
• Citation: 98 F. 281
• Parties: UNION PAC. RY. CO. et al. v. COOK. COOK v. UNION PAC. RY. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

98 F. 281

UNION PAC. RY. CO. et al. v. COOK.

COOK v. UNION PAC. RY. CO. et al.

Nos. 1,197, 1,198.

United States Court of Appeals, Eighth Circuit.

October 23, 1899

These are two writs of error, which were sued out respectively by the Union Pacific Railway Company and the Omaha & Grant Smelting Company, the defendants below, and by Ira Cook, the plaintiff below, to reverse the same judgment. The suit was in ejectment for the recovery of lot 3 in block 65, lot 1 in block 97, and lot 8 in block 96, all situated in the city of Omaha, Neb. The plaintiff below recovered the possession of lot 8, but failed to recover lots 1 and 3. Errors were accordingly assigned by both parties, and separate writs of error were brought. The case was tried below without a jury and the following facts, in substance, were found specially by the trial judge: In June and November, 1865, Ira Cook, the plaintiff below, and his wife, Mary Cook, by two deeds conveyed the three lots in controversy, for a valuable consideration, to the Union Pacific Railroad Company, which was then engaged in constructing its railroad from the city of Omaha to Ogden, in the territory of Utah. The habendum clause in each deed was as follows: 'To have and to hold the same unto the said Railroad Company, their successors and assigns, forever; provided, in case said Railroad Company do not construct their road through said tract, or shall, after construction, permanently abandon the route through said tract of land, then the same shall revert to and become reinvested in the said grantor, heirs or assigns. ' Afterwards, but at a date not established, lot 1 in block 97 was washed away or submerged by the Missouri river, on the bank of which the lot was located. A great portion of lot 8 in block 96 was also washed away or submerged subsequent to the execution of the aforesaid deed, so that only a small part thereof now remains; but before it was washed away the railroad company had constructed, at a date not established a switch track across the lot, which was washed away and abandoned before the commencement of the present action, and such part of the lot as was then above water was in the possession of the Omaha & Grant Smelting Company, one of the defendants below, hereafter termed the 'Smelting Company,' as lessee of the Railroad Company under a lease executed by the latter on April 23, 1886, for a term of 25 years, to expire in April, 1911. By a lease made by the Railroad Company on October 23, 1889, to the Smelting Company, it reserved to itself the right to lay a track across lot 8, which was demised by its previous lease, dated April 23, 1886; but it has never as yet availed itself of that privilege. So much of lot 8 as is now in existence is used by the Smelting Company for a roadway along the east side of its works, but no part thereof is covered by buildings or other structures. Actual possession of that part of lot 8 which is not submerged was taken by the Railroad Company in April, 1886, when it leased the same to the Smelting Company. The greater part of lot 3, in block 65, on the other hand, is within the right of way of the Railroad Company, treating that right of way as 200 feet in width that is to say, the greater part of lot 3 is less than 100 feet distant from the center of the main track of the Railroad Company as originally constructed in the year 1865, and as it is still maintained, but no part of said track is laid on said lot. Certain switch tracks, however, connecting with the main track, do cross lot 3, and are in use by the Railroad Company. Actual possession of lot 3 was not taken by the Railroad Company, except by constructing its track as aforesaid, until October 23, 1889, when it leased that lot, together with other property, to the Smelting Company, and constructed a switch track across the same. Ira Cook has been a resident of Des Moines, Iowa, since he made the conveyances aforesaid, and he had no personal knowledge of the manner in which the property conveyed had been employed, or the uses to which it had been put, until the year 1891. He brought the present suit on July 13, 1895, having served notice of forfeiture upon the Railroad Company and the Smelting Company on June 17, 1895.

W. R. Kelly, E. P. Smith, and John N. Baldwin, for the Union Pac. Ry. co.

James G. Berryhill, George F. Henry, E. Wakeley, and Arthur C. Wakeley, for Ira Cook.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

The right of Ira Cook, the plaintiff below, to recover lot 3 in block 65 depends altogether upon the contention that by a true construction of the conveyance of that lot to the Union Pacific Railroad Company in the month of November, 1865, the plaintiff intended that the land should revert to him unless the track of the railroad (meaning thereby the rails and ties) were actually laid on or through the lot in controversy. The claim is, in other words, that the word 'road,' as used in that clause of the deed which is above quoted, means simply the narrow strip of land on which the track is laid. We think, however, that such a construction of the deed would be unreasonable in view of the circumstances under which it was executed. When the deed was made, the Railroad Company was engaged in building its line from Omaha to Ogden. It was authorized by act of congress (13 Stat. 357, c. 216, Sec. 3) to acquire a right of way 200 feet in width for the construction and operation of its road, and it needed a strip of land on each side of its track for ditches, and from which to obtain material for grading, as well as on which to lay its ties and rails. Besides, we cannot assume from the findings made by the trial court that at that time the laying of the ties and rails of the contemplated railroad on or through the lot in controversy would have been any more beneficial to the plaintiff than the extension of the right of way across the same, or that the plaintiff had any special motive in binding the Railroad Company to construct its track as distinguished from its right of way through the lot. The word 'road,' when applied to a railroad, is often used in a sense which comprehends not only the ground on which the ties and rails are laid, but the strip of ground on either side thereof extending to the limits of its authorized right of way, and we have no doubt that it was used in that sense in the present instance. Inasmuch, then, as the greater part of lot 3 is less than 100 feet from the center line of the main track of the Union Pacific Railroad Company, as originally constructed, and within the boundaries of its authorized right of way, ...