Weir v. Standard Oil Co.

• Decision Date: 26 May 1924
• Docket Number: 24100
• Citation: 136 Miss. 205,101 So. 290
• Court: Mississippi Supreme Court
• Parties: WEIR et al. v. STANDARD OIL CO. et al. [*]

101 So. 290

136 Miss. 205

WEIR et al. v. STANDARD OIL CO. et al. ^[*]

No. 24100

Supreme Court of Mississippi

May 26, 1924

Division B

Suggestion of Error Overruled Sept. 15, 1924.

APPEAL from chancery court of Hancock county, HON. V. A. GRIFFITH Chancellor.

Bill by Fannie B. Weir and others against the Standard Oil Company and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Decree affirmed.

R. L. Genin, for appellants.

The land in suit is far away from the first location and fenced in with permanent fence all to itself and on the extreme outer edge and is a part of the land taken and held by the railroad company for railroad purposes under the expropriation proceedings. The Standard Oil Company has taken this land under the above lease, placed a fence around it constructed several large tanks, building, including warehouse, garage in which is kept tank-wagons, stable in which mules are kept, and enclosure for mules to pasture, and assumed sole and uninterrupted enjoyment of the land sued for. There are no track, tools, material or anything else belonging to, or in any way used by the railroad company for railroad purposes on this land. The oil and gasoline of the Standard Oil Company received over the railroad is placed in tank cars at the end of a switch track over two hundred feet distant from this land and on the opposite side of one of the city's most popular highways. From the end of this switch track there are pipe lines constructed underground by the Standard Oil Company under the street and ditches over two hundred feet away to the land and to the tanks of the oil company.

The appellants claim that because of the permanency of the buildings, pipe lines, etc., of the Standard Oil Company, the land has been abandoned by the Railroad Company for railroad purposes and reverted to them and they are entitled to a reasonable rent or compensation from the Standard Oil Company and proved without contradiction that a reasonable rent was forty dollars per month.

The learned chancellor held that the land used by the Standard Oil Company is used in the same way all over the country and the question never having been raised before, the use must be that use incidental to railroad purposes.

In other words, the entire world, including the railroad company, is excluded from this strip of land, which land was taken by the railroad company from the appellants' father and mother, under the authority of our laws and constitution for public use and delivered over to the Standard Oil Company without payment to any one for the exclusive use and enjoyment of the oil company for their private gain.

The courts of the country universally hold that if the use now is of a different general character from the original use, the public easement is lost. 10 R. C. L. 202; 20 C. J. 1229 and 1234, and cases there cited; Neitzel v. Spokane International Railway Co. (Wash.), 36 L. R. A. 522; Lorick & Lourance v. Southern Railway Co., 68 S.E 931, 87 S.C. 71; Belcher Sugar & Refining Co. v. St. Louis Grain Co., 101 Mo. 192, 13 S.W. 822, 8 L. R. A. 801; Southern Railway Co. v. Beaudrot, 41 S.E. 299, 63 S.C. 266; The Missouri K. & T. Railroad Co. of Texas v. Anderson, 81 S.W. 781, 36 Texas Civ. App. 120; Missouri, K. & T. R. R. Co. of Texas v. Mott, 81 S.W. 285, 98 Texas 91, 70 L. R. A. 579; Hill et al. v. Woodward, et al., 57 Miss. 297.

We have been unable to find any case of an oil company using the land taken by a railroad company for its private use, but the case of the wholesale grocery above referred to, and the case of Postal Tel. Cable Co. v. G. & S. I. Railroad Co., (Miss.) 70 So. 833, we believe conclusive on this question. Our supreme court has held that the placing of a telegraph wire on a telephone pole is an additional servitude for which the owner is entitled to damages. See also Locks & Canals on Merrimac River v. Nashua & L. R. Co., 104 Mass. 1, 6 Am. Dec. 181.

The authorities hereinafter set out hold the following uses were additional servitude upon the land: Cosgriff v. Tri-State Telephone, etc., Co., 15 N.D. 210. The laying of a pipe line along a rural highway amounts to the imposition of a servitude upon the fee additional to that embraced in the easement for highway purposes and that the abutting owner is entitled to compensation. Consumers Gas Trust Co. v. Huntsinger, 14 Ind.App. 155-166, 42 N.E. 640, 39 N.E. 423; Huffman v. State, 21 Ind. App. 449, 52 N.E. 713; Ward v. Triple State Natural Gas Co., 115 Ky. 723, 74 S.W. 709; Sterling's Appeal, III Pa. St. 35, 2 A. 105; Murry v. Gibson, 21 Ill.App. 488.

Our supreme court has repeatedly held that the owner of the fee is entitled to additional compensation where property was condemned for a street and the street used for additional purpose, such as railroads. Slaughter v. Meridian Light & Railway Co., 95 Miss. 251, 48 So. 6, 25 L. R. A. (N. S.); Theobald v. Railway Company, 66 Miss. 279, 6 So. 230, Ala. & C. R. R. Co. v. Bloom, 71 Miss. 247, 15 So. 72.

T. M. Evans, for appellant.

We submit that the lease from the Louisville & Nashville Railroad Company to the Standard Oil Company is not for a similar purpose for which the land was acquired by condemnation proceedings; it is not a similar use to that of the railroad company, but it is a different use which is inconsistent with the purpose for which the right was acquired by the railroad company. It is well-established law that a railroad company acquires no title in fee-simple to land by expropriation proceedings, but that the railroad company is limited to easement rights.

The basic principle here is whether or not the location of the Standard Oil Station and oil tanks upon the property in question are indispensable to the operation of the business of the Louisville & Nashville Railroad Company. The Louisville & Nashville Railroad Company has a right to use the property taken under expropriation proceedings and apply it to any use that is indispensable to facilitate the fulfillment of the objects of its incorporation required for the convenient, safe, and successful conduct of its business, and the running of its trains. It is perfectly evident from the facts in this case that such is not the case.

The construction of a telegraph and telephone line on a railroad company's right of way imposes an additional servitude or burden on the land, for which the owners are entitled to compensation, unless it is constructed by the railroad company in good faith, for its own use and benefit in the operation of the road and to facilitate its business. Am. Tel. & Tel. Co. of Baltimore v. Geo. A. Smith, 71 Md. 536, and nine other cases; 7 L. R. A. 201-205; Lewis on Eminent Domain, sec. 141; Mills on Eminent Domain, sec. 59; Phillips v. Postal Tel. & Cable Co., 130 N.C. 513, 89 Am. St. Rep. 869.

Effect of Abandonment--Change of Use. When property taken under expropriation proceedings has been abandoned or put to another use, the easement ceases. When, however, only an easement has been acquired for the public use, either by condemnation, purchase, prescription, or dedication, if the use for which the land was taken is formally discontinued or permanently abandoned, in fact, or becomes impossible, or the land so devoted to a different and inconsistent use, the easement expires and the owner of the fee holds the land free from incumbrance. In any such event the right to possession does not remain in the condemning party, but reverts to the owner of the fee. Barclay v. Howell, 8 L.Ed. 512; Harris et al. v. Elliott (U. S.), 9 L.Ed. 333, 335; Skilman v. Chicago, Milwaukee & St. Paul R. R. Co., 16 Am. St. Rep. 452, 455; Rowzee v. Pierce, 75 Miss. 853, 862; Platt et al. v. Pennsylvania R. R. Co., 22 Am. & Eng. Cases, 129, 146; Giesy v. Railroad Co., 4 Ohio St. 420, 428. See, also, Imlay v. Union Branch R. R. Co., 26 Conn. 249, 68 Am. Dec. 392, 398; Pac. Railway Co. v. Seely, 45 Mo. 212, 100 Am. Dec. 369, 376; Lance's Appeal, 55 Pa. St. 16, 93 Am. Dec. 722, 730; Ligarre v. City of Chicago, 32 Am. St. Rep. 179, 191; Query v. Postal Tel. & Cable Co., 178 N.C. 639, 8 A. L. R. 1290 to 1293, and notes; Western Union Tel. Co. v. Rich, 19 Kan. 1517, 27 A. L. R. 159; Canadian Pacific R. Co. v. Moosehead Tel. Co., 106 Me. 363, 29 L. R. A. 703; American Tel. & Tel. Co. v. Pierce, 71 Md. 535; St. Louis, I. M. & S. R. Co. v. Cape Giradeau Bell Tel. Co., 134 Mo.App. 406; Nicoll v. N.Y. & N. J. Tel. Co., 62 N. J. 733, Am. St. Rep. 666; Teeter v. Postal Tel. Co., 172 N.C. 783; Hodges v. Western Union Tel. Co., 133 N.C. 225.

We submit that under the law and facts in this case, we are entitled to have the decree of the chancellor reversed; and on the evidence of the witnesses for the defendant, we are entitled to have a judgment entered declaring that the Louisville & Nashville Railroad Company has abandoned the use of said land for railroad purposes in converting it to use other than railroad purposes, and, therefore, the easement acquired under the condemnation proceedings has been forfeited; and that the appellants are entitled to said property not only in fee-simple, but free from all claims of right or possession by said Louisville & Nashville Railroad Company or the Standard Oil Company, and to have judgment entered for the complainants.

Smith, Young, Leigh & Johnston, for appellees.

The Leasing of the Property by the Railroad to the Standard Oil Company Clearly Constitutes a Use of the Property for Depot and Railway Purposes.

If the court is of the opinion that the complainants have proven a fee-simple title to the property in themselves, and that the railroad company's title is limited to a right to use the property for depot and railway purposes only, then it is clear that the use to which the property is put by...