Watkins v. Iowa Central Railway Co. , 123 Iowa 390 ( 1904 )

Deemer, C. J.

This long statement of the issues and proceedings seems necessary to an understanding of the exact points presented. Defendant complains of the ruling made March 29th on the plaintiff’s demurrer to the defendant’s answer and amendment thereto, and of the ruling striking its substituted answer and amendments thereto, pursuant to plaintiff’s motion filed August 22, 1902. Plaintiff says that, by pleading over after the ruling on the demurrer, defendant waived any error in that ruling, and that the only question is the correctness of the ruling on the motion to strike, while the defendant contends that it has tho right to be heard on both of these rulings. There is no doubt that, when one pleads over after an adverse ruling on a demurrer, he by so doing waives the particular error in that ruling, but such ruling does not, under our present practice, constitute an adjudication; and the same question may be presented in other ways, as by motion in arrest, to direct a verdict, objections to evidence, or in any other recognized mode. Pierson v. Ind. Dis., 106 Iowa, 695; Frum v. Keeney, 109 Iowa, 393; Geiser Mfg. Co. v. Krogman, 111 Iowa, 503. However, if it affirmatively appears that the unsuccessful party did not waive the error in the ruling, this is sufficient. Denby v. Fie, 106 Iowa, 299. As to the ruling on the motion to strikoj the only question to be considered is whether or not the substituted pleading is a mere repetition of the former one. If it is, then the ruling on the motion must be sustained. If it is not, then, no matter what the character of the new matter, the ruling must be reversed. McKee v. Ill. Central R. Co., 121 Iowa, 550, and cases cited.

1. demurrer: pleading over. 2. pltíading Over: motion to strike. But these rules must not be so construed as to prevent a party from presenting his cause of action or defense to this court on appeal. If, after a ruling on a demurrer, a party excepting 'to that ruling pleads over a mere repetition of the matter theretofore stated in the pleading demurred to, he does not, of course, waive the error in the ruling on the demurrer. By so doing he manifestly does not intend to waive the error in the ruling on the demurrer, if any there be. Moreover, it would be little short of ridiculous to say that by repleading the same matter he is pleading over, and for that reason is concluded by the ruling, and that he cannot complain of the action of the court in striking his substituted pleading from the files because a mere repetition of the matters stated in the pleading, demurred to. He either does not plead over by reasserting the same matters, or, if he does, such pleading should not be held to be a waiver of the ruling theretofore properly excepted to. Our rules of procedure are not intended as a trap to catch the unwary. Of course, if no exception is taken to the ruling on the' demurrer, and the party whose pleading is attacked makes no exception thereto, but pleads over, and the demurring party moves to strike it, because a mere repetition, the only question then to be considered is the correctness of the ruling on the motion to strike. By failing to except to the ruling on the demurrer, the pleader accepts' it as the law of the case, and the only ruling he challenges is the one on the motion to strike. This is all that is held in the McKee Case, supra, which, is the only case relied upon by appellee, decided since our present Code went into effect. In that case there was no exception to the ruling on the demurrer, and no error ivas assigned thereon. The only assignment was that the court erred in sustaining a motion to strike an amended and substituted petition from the files. And the only question for decision in that case was whether there_was error in striking it, because of its being a mere repetition of a former pleading which had been held insufficient. Here the defendant did not acquiesce in the ruling on the demurrer, but excepted to the same, and either did or did not re-plead the same matter in its substituted answer, as amended. If it did replead the same matter as a defense, it did not, of course, acquiesce in the ruling, for it still insisted on the matter being defensive, and did not really plead over. If it did introduce any new issue, no matter whether this new matter constituted a defense, in law, or not, the trial . . A court was m error m sustaining tlie motion to strike, based on the single ground that the pleading was a mere repetition. New matter introduced as a defense cannot be attacked by a motion to strike on the ground that it is a mere repetition of something stated in a former pleading. The sufficiency of the new matter as a defense to the plaintiff’s claim can not be tested by such a motion.

Even on plaintiff’s theory of the case, we find that new matter was pleaded in the substituted answer and amendments thereto, and the trial court ivas in error in striking it, for the reasons stated. But we find that many, if not most, of the questions presented by 'the demurrer to defendant’s first answer and amendments thereto were again presented by objections to evidence, and in defendant’s motions in arrest of judgment and for a new trial, and that we must consider the questions presented by the rulings complained of; that is to say, the rulings on the demurrer, and on the motion to strike the substituted answer as amended.

3. condemn*. IncesiS'fel7" usen^lve”" slon' Erom the record we extract the following facts, shown by the pleadings which were attacked by the plaintiff. Prior to March 29, 1869, John Mock was the owner of the strip land in controversy. .On thát day he con-veyed by deed of bargain and sale to the Iowa Central Kailroad Company the following described real estate, to wit: “So much of the southwest quarter of the northeast quarter, and the north'west quarter of the southeast quarter of section twenty-two, township seventy-two north of range seventeen west, as lies within fifty feet of the center line of the main track of the Iowa Central Kailroad, as the same is surveyed, staked out and marked upon the ground, being fifty feet in width on each side of said center line.” This includes the land in controversy. There is no showing in the deed that this was for a right of way, or that it was to be used for railway purposes. The deed, on its face, conveys an absolute estate in fee simple. True, work was done on the land by the grantee for railway purposes, but it never established a line of road thereon. It also appears that plaintiff obtained whatever title he has from John Mock and wife in the year 1871. TIis deed of conveyance describes his land by metes and bounds, and no part of the land in dispute is covered thereby. The description confines the tract granted to that outside of and beyond the land conveyed to the Iowa Central Kailroad Company. The grant 'is clearly limited to that outside of and beyond the right of way. Georgia R. R. v. Hamilton, 59 Ga. 171; Church v. Stiles, 59 Vt. 642 (10 Atl. Rep. 674); Maynard v. Weeks, 41 Vt. 617; Williams v. R. Co., 50 Wis. 71 (5 N. W. Rep. 482); Reid v. Klein, 138 Ind. 484 (37 N. E. Rep. 967); Perry v. Keith, 93 Me. 433 (45 Atl. Rep. 511); Newton v. R. Co., 110 Ala. 474 (19 South. Rep. 19). Plaintiff therefore never obtained title to the strip, unless he obtained it through reversion, by reason of the abandonment of the so-called right of way by the railroad company.

In another amendment to its answer, the defendant pleaded that the Centerville, Moravia & Albia Kailroad Company took possession of the right of way in question in the year 1880, laid down its track thereon, and has operated its road thereon ever since. It also pleaded as follows: “The defendant does not claim that the Centerville, Moravia &. Albia Eailroad Company condemned the right of way in question, which it occupied with its road, but it actually diet open and notoriously operate its roadbed on said right of way in question, and has ever since 1880, by and with the consent of the Central Eailroad Company of Iowa, in the first place, and by the present defendant as its successor. The Center-ville, Moravia & Albia Eailroad track does not extend west of the center line of said old right of way, but it claims the use of the right of way west of said center line for right of way privileges.” A demurrer to this amendment to the answer was also sustained, and exception taken. It thus appears that the strip of land has been used by the Centerville, Moravia & Albia Eailroad Company from the year 18,80 down to the present, by and with the consent of the defendant and its predecessors and successors in interest. These are the facts pleaded, and the question is, do they constitute a defense to plaintiff’s claim for damages ? What purports to be a copy of the original deed from Mock and wife to the Iowa Central Eailroad Company, of the strip of land in dispute, appears in appellee’s abstract; but it does not appear to have been introduced in evidence, and it is not made a part of the pleadings attacked. It differs materially from the one set up by defendant in its answer, in that it shows a conveyance for right of way purposes, instead of a deed in fee simple, as shown in defendant’s pleadings. We must accept the deed set up by the defendant in its answer as being the true one, and consider the case from that standpoint. Under this showing, is plaintiff entitled to recover compensation for the strip of ground taken by the defendant ? We think not, and, as briefly as may be, shall state our reasons therefor.

For the purposes of the case, we shall assume that defendant company has not used this strip of ground for railway purposes since the year 1810. But, before plaintiff can recover, he must show that the title thereto reverted to him by this nonuse'r. Remembering that this strip was conveyed by Mock, tbe original owner, to tbe defendant or its grantors by deed which would ordinarily convey a fee-simple title, and that plaintiff must base his claim on reversion thereof to him, we have to inquire, first, whether or not nonuser by the defendant or its grantees operated as an abandonment of its title; and, second, whether, conceding there was an abandonment, title passed to plaintiff, as an adjoining owner of the strip. It is contended that defendant took no greater title through its deed from Mock that it would have acquired by condemnation proceedings under the statute, whereby it -receives simply an easement in the land for railway purposes. If this be true, it is difficult to see how the fee could pass through nonuser of the casement from Mock, who at all times owned it, to the plaintiff, who never received any conveyance therefor. Plaintiff’s claim to it is not for public purposes, but for his own private benefit and advantage; and the Legislature can hardly be supposed to have intended to pass title taken for public use through ad cjuod damnum proceedings to a private person, even through nonuser of the title or easement obtained thereby. If such is to be the construction of the statutes, the writer, and perhaps other members of .the court, would have no hesitation in holding them, unconstitutional. But we need not speculate on this point. There is no doubt that the deed from Mock to the defendant conveyed a fee-simple title to the strip of land. Even if it had conveyed a mere easement, we have held that Code, section 2015, does not apply to an easement acquired by express grant, and that failure to use the same, even when accompanied by possession of the original owner, in the absence of any act of his preventing the use, will not defeat the easement. Noll v. Dubuque, etc., R. Co., 32 Iowa, 66. This decision was rendered long after the adoption of chapter 91, page 95, Acts 13th General Assembly, which, so far as this point is concerned, is to all intents and purposes the same as section 2015 of the Code. See also, Barlow v. C., R. I. & P. R. R., 29 Iowa, 276. These decisions have been followed in other states and jurisdictions. See Townsend v. Mich. Cent. R. Co., 101 Fed. Rep. 761 (42 C. C. A. 570); McCue v. Bellingham Co., 5 Wash. 159 (31 Pac. Rep. 461); Mouat v. Seattle R. Co., 16 Wash. 89 (47 Pac. Rep. 233); Durfee v. P., D. & E. Ry. Co., 140 Ill. 439 (30 N. E. Rep. 686). But we need not at this time rely upon this proposition alone; for some of the members of the court as now constituted have doubts as to its soundness.

In the instant case the deed to the defendant was not of a right of Avay, or for railway purposes, but of a fee-simple title. That a railway company has the right to take such a deed, see M. & St. L. R. R. v. Lindquist, 119 Iowa, 148; Page v. Heineberg, 40 Vt. 81 (94 Am. Dec. 378); State v. Brown, 27 N. J. Law, 13; Holt v. Somerville, 127 Mass. 408; Yates v. Van De Bogert, 56 N. Y. 526; Heath v. Barmore, 50 N. Y. 302. There cazr be no doubt .that Hock parted with the fee-simple title to this strip of land, and that defendant, a corporation duly organized, reeeiAd that fee. If it cannot hold it, it is because of some limitation in its charter or some provision of laAV. We find no provision of laAV which prevents its acquiring such title by purchase, and nothing appears as to its charter powers. Even if the state had passed an act prohibiting it from acquiring absolute title AA'e do not see how plaintiff could advantage himself thereof The original grantor might in some cases do so, but surely a stranger can not. When a corporation is authorized to hold real estate for some purposes, or to a limited extent, a deed to it is not void, although the lands were for other purposes or beyond the limit allowed. As between the parties, the deed passes title, and the state alone can inquire into the matter by direct proceedings. Natoma Water & Min. Co. v. Catkin, 14 Cal. 544; Cowell v. Springs Co., 100 U. S. 55 (25 L. Ed. 547); Nat. Bank v. Matthews, 98 U. S. 621 (25 L. Ed. 188); Barnes v. Suddard, 117 Ill. 237 (7 N. E. Rep. 477); Hayward v. Davidson, 41 Ind. 212; De Camp v. Dobbins, 29 N. J. Eq. 36; De Camp v. Dobins, 31 N. J. Eq. 671. There is broad presumption that a conveyance to a corporation is for a purpose for which it is authorized to hold real estate. Millers’ Bank v. R. R., 17 Wis. 372; New England Co. v. Robinson, 25 Ind. 536; Lancaster v. Improvement Co., 140 N. Y. 576 (35 N. E. Rep. 964, 24 L. R. A. 322). In Heath v. Barmore, 50 N. Y. 302, it is held, and with good reason, that, although on condemnation nothing but an easement could be acquired, yet nevertheless a railway company may acquire a fee by deed. This necessarily follows, we think, if the foregoing doctrines are sound. The cases quite uniformly hold that, where a fee simple is taken, there is and can be no reversion. See cases cited in Lewis on Eminent Domain, in section 596, and note; also Barlow v. R. Co., supra. That a deed such as the one in question conveys a fee, see Cin. R. R. v. Geisel, 119 Ind. 77 (21 N. E. Rep. 470); Hill v. Western Vermont Co., 32 Vt. 68; Nicoll v. R. Co., 12 N. Y. 121. If the conveyance was simply of a right of way, a different rule might obtain, under the doctrino announced in Brown v. Young, 69 Iowa, 625; Smith v. Hall, 103 Iowa, 95. But as we have seen, there is no such question here, and we leave that point simply with the suggestions already made. As to the power of corporations to take and hold real estate, see Jones on Beal Property in Conveyancing, section 169 et seq., and cases cited. We are firmly committed to the doctrines heretofore announced in C., B. & Q. R. R. v. Lewis, 53 Iowa, 101, where we said that such questions as the right of a corporation to hold real ' estate where it could hold for any purpose are between the corporation and the government, and not for the grantor or his grantees. In that case we cited some of the authorities already referred to with approval in this opinion.

This settles, as it seems to us, all question regarding the right of the defendant company to hold the title which it purchased, to wit, the fee-simple title. It follows, then, that, as defendant company received a deed in fee simple for the strip of land in controversy, there is .nothing to revert or pass either to Mock or to plaintiff, who claims it by reason of being an adjoining owner. Moreover, it is evident that Mock did not intend to convey the strip which he had theretofore conveyed to the defendant to the plaintiff, Watkins, for he expressly limited the land conveyed to him (Watkins) to that north and west of the land.in controversy. He thus recognized the force and effect of his conveyance to the defendant.

4. bstoppel. But plaintiff says, in argument, that as defendant brought condemnation proceedings to establish plaintiff’s damages, it is estopped from claiming that plaintiff has no title. This point was not made by the demurrer or in the motion to strike, nor was it made during the trial of the case in any manner whatsoever. When an estoppel is relied upon, it must be specially pleaded. This is familiar doctrine. There is no suggestion in the pleadings of any such motion. It was not made a ground of demurrer, nor does it appear to have been considered; during the trial. Bor this reason, we cannot consider it.

This settles the case, and, of necessity, calls for a reversal thereof.

The writer, however, cannot forego expressing these further thoughts, which, to his mind, are also determinative of the case: Birst, that, as defendant obtained its right of way by deed, sections 2015 and 2016 do not apply, in the absence of pleading and proof of adverse possession, under the doctrine of the Noll Case, and others like it, which have already been cited. In other words, mere nonuser will not forfeit the easement, conceding it to be such, when that easement is obtained by deed, rather than by ad quod condemnaaon proceedings. He is further of opinion that, upon nc nuser of an easement acquired either by condemnation or by deed, the title does not pass to a stranger to the legal title. If the railway company acquires nothing but an easement, the title has never been out of the original grantor; and it would be unconstitutional for the Legislature to attempt to pass that title to a stranger who never had any interest in it, and who did not wish to use it for public purposes. Plaintiff never did buy this strip of land. If the title passed to the railway company, then, of course, he never had any interest therein. See Cole v. Hadley, 162 Mass. 579 (39 N. E. Rep. 279). If the title did not pass to the railway company, and all that it acquired was an easement, then the title never passed from Mock; and, as he did not convey that title to plaintiff, he (plaintiff) never had any interest therein. So that, no matter which horn of the dilemma is taken, plaintiff never had any interest in the land in’ controversy. I am aware that something said in Smith v. Hall, 103 Iowa, 95, seems to run ■counter to this, but the exact question here decided was not considered or passed upon in that case. Moreover, the statute there construed was not in force when the alleged abandonment occurred in this case, and at that time the Legislature had not undertaken to direct the course of the reversion. That statute first appeared as-chapter 15, page 14, Acts 18th General Assembly. The abandonment, if there was one here, occurred before that date, for the reason that since that time, according to the allegations of the last answer, another railway has at all times been in possession of and occupying a line of road over the land in controversy, with the permission of the original grantee from Mock of the strip. ■ The conveyance in the Smith-Hall Case was not of a fee-simple title, but ■of a right of way only.

Many of the questions we have considered as arising on the demurrer and the motion to strike were raised by objections to testimony and by requests for instructions; hence, ■even if it be said that, for technical reasons, the matters already .considered are not in the case on these rulings, we should ycefc be compelled to consider them, because of these ■objections and requests.

The ilesult of the whole matter is that the case must be reversed, and remanded for a new trial in accord with the views expressed by the majority in this opinion. — Reversed.