Wallace v. Chicago B. & Q. R. Co, 954

CourtUnited States State Supreme Court of Wyoming
Citation190 P. 999,27 Wyo. 31
Docket Number954
Decision Date19 July 1920

190 P. 999

27 Wyo. 31


No. 954

Supreme Court of Wyoming

July 19, 1920

APPEAL from the District Court of Natrona County; HON. CHAS. E. WINTER, Judge.

Action by C. M. Wallace against the Chicago, Burlington and Quincy Railroad Company for the possession of certain land alleged to have been taken by defendant for use in the construction of its railroad. From a judgment awarding damages but denying plaintiff a recovery of possession, plaintiff appeals.


Wm. O. Wilson, George W. Ferguson and Fillius, Fillius, and Winters, for Appellant.

The title of the plaintiff being proved and admitted at the trial, the sole remaining question before the Court was that of estoppel; this being a defense alleged by defendant, it assumed the burden of proof, and in this it clearly failed; that at the trial, counsel for defendant conceded that plaintiff was entitled to some compensation for his land; defendant therefore established plaintiff's title and plaintiff was entitled to a judgment in ejectment unless defendant had established in fact and law an estoppel by the act or conduct of the plaintiff which prevented him from asserting title; there is no evidence that plaintiff knew that defendant had entered into possession of his land at any time prior to this action of ejectment; in fact, the evidence shows that plaintiff had no such knowledge; it further shows that defendant entered upon the land with full knowledge that plaintiff was the owner of the property; equitable estoppel requires clear and positive proof of knowledge on the part of plaintiff as to the entry and improvements made by defendant, (Pomeroy Eq. Jr. Vol. 2, 3d Ed. Sec. 807; Ford v. Libby 22 Wyo. 465; Halleck v. Bresnahan, 3 Wyo. 73;) estoppel by silence requires full knowledge of the facts and a clear intent to mislead and that the other party was in fact mislead by such attitude; (R. C. L. Vol. 10; pp. 693; 16 Cyc. 759.) Plaintiff was entitled to judgment in ejectment.

E. T. Clark, A. C. Campbell and Nichols and Stirrett, for Respondent.

If a corporation which owes a duty to the public and to whom has been delegated the exercise of the power of eminent domain, and especially a railroad company, enters upon and takes possession of private property which it could have obtained under the power of eminent domain, and thereafter makes improvements thereon necessary for its purposes, with the consent, or acquiesence, or knowledge, of the owner, and without making to him compensation, such owner is estopped from instituting an action in ejectment to recover the property, or a suit in equity to enjoin the occupant from using the same, but is limited to an action for compensation, and the measure of his damages is the reasonable value of the property when taken and occupied by the defendant. (Goodin et al, v. C. & W. W. Co. 18 O. S. 169; Reisner v. Strong, et al., 24 Kan. 297; Cohen v. St. L. F. S. & U. R. Co, 8 P. 138, (Kan); C. B. & U. P. R. R. Co., v. Andrews, 26 Kan. 702; Oliver v. P. Va. & Ch. R. Co., 131 Pa. St. 408; S. C. 17 Am. St. Rep. 814; 19 A. 47; Charleston Ry. Co. v. Hughes, 105 Ga. 1; S. C. 30 S.E. 972; 70 Am. St. Rep. 17. Southern Ry. Co. v. Good, 126 Ala. 312. S. C. 28 So. 662; 85 St. Rep. 32; Hendrix v. Southern Ry. Co., 130 Ala. 312; S. C. 30 So. 596; 89 Am. St. Rep. 27; Reichert v. St. L. & S. F. Ry. Co., 51 Ark. 491; S. C. 19 N.E. 111; 9 Am. St. Rep. 852; L. N. A. & C. Ry. Co. v. Soltweddle, 116 Ind. 257; S. C. 19 N.E. 111; 9 Am. St. Rep. 852; Stuart v. Colo. Eastern R. Co., 156 P. 152; East San Mateo Land Co. v. S. P. R. Co., 157 P. 634; E. O. Land Co. v. Des Chutes R. Co., 213 F. 897; Clynn v. Beaverhead Co., 141 P. 673; State Ex. Rel. Twiss v. Superior Court of Lewis County, 161 P. 68, 69; Taylor v. M. O. Ter. Co. 126 La. 420; 52 So. 562; Lancaster v. Augusta Water Dist. 108 Me. 137, S. C. 79 A. 463; Railroad Co. v. Sweeney, 97 Ind. 586; Jacobs v. K. C. S. & C. Ry. Co. 64 So. 150; 134 La. 389; Land Co. v. Blackwood, 59 So. 984 131 La. 539; Railroad Co. V. Hill, 23 So. 566, 74 Am. St. Rep. 74; Railway Co. v. Supply Co. 82 S.E. 228; McAulay v. Western Vt. R. Co. 33 Vt. 311; 78 Am. Dec. 627; B. & W. Ry. Co., v. Allen, 113 Ind. 581; 15 N.E. 446; L. N. A. C. Ry. Co. v. Beck, 119 Ind. 124, 21 N.E. 471; Lawrence v. M. L. & T. Ry. 39 La. 427, 2 So. 69; L. N. A. & C. Ry. Co. v. Berkey, 136 Ind. 591, 36 N.E. 642;)

Actual, visible, open, notorious and exclusive possession of real property, under claim of right and color of title, which possession is manifested by the erection of valuable improvements thereon, is notice, or equivalent to notice, to all the world of such possession and claim of title, and such possession and claim of title and the acts of ownership done thereunder, raise a conclusive presumption of notice to the real owner, whether present or absent, of an intention to hold and assert an exclusive adverse possession against him. (Warfield v. Lindell, 38 Mo. 561, S. C. 90 Am. Dec. 443; Black v. Tenn. C. I. & Rd. Co. 93 Ala. 109, S. C. 9 S. 537-539; Murray v. Royle, 92 Ala. 559, 9 So. 368; King v. Carmichael, 136 Ind. 20, S. C. 35 N.E. 509; 43 Am. St. Rep. 303-310.) This is not a case of mere trespass by one without authority to enter; good faith in acquiring color of title will be presumed until the contrary is shown; (McCagg v. Heacock, 34 Ill. 476; 83 Am. Dec. 327;) if the injury was such that final compensation would have followed in condemnation proceedings, its character is not changed by the fact that such proceedings were not resorted to; damages assessable in condemnation can be assessed in an ordinary action in ejectment; appellant could not have recovered in any proceeding, the value of the improvements made by respondent; who entered under a claim of right; (Justice v. Nesquehoning Valley R. Co. 87 P. 28; Western N. C. R. Co. v. Deal, 90 M. C. 110; Albion River R. Co. v. Hesser, 84 Cal. 435; 24 P. 288; Oregon R. & Nav. Co. v. Mosier, 14 Or. 519, 58 Am. Rep. 321, 13 P. 300. Jones v. New Orleans & S. R. Co. 70 Ala. 227; Newgass v. St. Louis A. & T. R. Co., 54 Ark. 140; 15 S.W. 188.) A land owner with knowledge that a railroad is constructing its line upon his land, who remains inactive and permits an expenditure of large sums in the work, will be estopped from maintaining trespass or ejectment. (2 Wood, Railway Law 792; Reichert v. St. Louis & S. F. R. Co., 51 Ark. 491; 11 S.W. 696.) The party of course does not lose his claim or the right to enforce it in all proper modes, (McAulay v. Western Vt. R. Co., 33 Vt. 321,) but the owner will be limited to the value of the land actually taken and the damages caused by the taking, (Stuart v. Colo. Eastern R. Co., 156 P. 152;) the appellant had notice which was equivalent to knowledge; (Gregg v. Von Phul, 1 Wall. 274, 17 L.Ed. 537; Hill v. Epley, 31 Pa. 334; Breeding v. Stamper, 18 B. Mon. 175;) Notice in this case is a legal deduction from possession and improvements by respondent, (Warfield v. Lindell, 38 Mo. 561; 90 Am. Dec. 443;) the estoppel in cases like the present does not convey title, but precludes the owner from asserting title for purposes of obtaining possession which would deprive the railroad company of its easement and improvements. (Hendrix v. So. Ry. Co. 130 Ala. 305, 30 So. 596; Southern Ry. Co. v. Hood, 28 So. 665,) and restricts the owner to a suit for damages, (Roberts v. Northern Pacific R. Co. 158 U.S. 1; Railway Co. v. Beck, 119 Ind. 124, 21 N.E. 471;) the damages cannot exceed the value of the property when taken;

Wm. O. Wilson, George W. Ferguson and Fillius, Fillius and Winters, in reply.

Knowledge on the part of the owner must either be admitted or proven, and in addition there must either be actual consent or conduct amounting in law to such consent; such is the doctrine of the cases cited by respondent. Where the right of condemnation exists, ejectment will be stayed to allow the railroad to condemn; (Oliver v. Pittsburg Ry. Co. 131 Pa. 408; Reichert v. St. Louis and S. F. Ry. 51 Ark. 491;) the owner may resort to any remedy known to the law for the protection of his property; (Pittsburg, Ft. W. and Chicago Ry. Co. v. Swinney, 97 Ind. 586, at page 599; Stuart v. Colo. and Southern R. R. Co. 156 P. 152;) respondent ignored the record owner and took a conveyance from persons whose title was groundless; there was a total disregard of plaintiff's rights; the authority cited by respondent is not clear and distinguishable in the case at bar; railroads are not exempt from the rule of estoppel. (Lewis on Em. Domain 929; Nichols on Em. Dom. 474;) mere information conveyed by third parties which was ignored by the owner, is not acquiesence, consent or license for the company to proceed; (Aslker v. R. R. Co. 57 Mo. 275; Childs v. Kansas City Ry. Co. 23 S.W. 373; Allegheny Valley R. Co. v. Colwell, 15 A. 927; T. P. and W. R. R. Co., v. Darst, 61 Ill. 231, 232, 233; Holloway et al v. Louisville St. L. & T. Co., 17 So. W. 572;) the railroad is required to procure the land by bargain or condemnation; (Minn. St. P. & Ste. M. v. Marble, 70 N.W. 319; Camerson v. Chicago M. & St. P. Ry. 61 N.W. 814; Chicago R. I. & P. Ry. Co. v. Hays, 113 P. 315,) ejectment is the proper remedy if elements of estoppel are not proven; (D. & R. G. Ry. Co. v. Doelz, 111 P. 595; Denver Santa Fe Railway Co. v. School district, 23 P. 978; Galway v. M. E. R. Co. et al, 128 N.Y. 132; Bradley v. Mo. P. Ry. Co. 4 S.W. 427; 429; L. St. L. and T. R. Co. v. Rudd, 30 S.W. 604;) it is always proper to stay executions on the judgment in ejectment to allow the railroad to condemn, (Mapes v. Van Dalia Railroad, 238 Ill. 142; Chicago & St. L. R. Co. v. Vaughn, 206 Ill. 234; Lewis on Eminent Domain, 929; Nichols on Eminent Domain, 474; Griswold v. R. R. Co. 12 N.W. 435;) the taking...

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