Kremer v. Chicago, M. & St. P. Ry. Co. , 51 Minn. 15 ( 1892 )

Vanderburgh, J.

The plaintiff alleges that he is, and for more than three years has been, the owner of a tract of land in Blue Earth county, containing upwards of 1,300 acres, which is traversed by the defendant’s railway. The railroad was constructed upon and over the land before plaintiff acquired title; but it never obtained the lawful right so to do, by condemnation proceedings or otherwise, and has never paid any compensation for the land occupied by it, or for the damages caused by the construction and operation of its railway thereon. ■ He therefore seeks by this action to recover possession, to eject the defendant from the premises, and for damages caused by the occupation thereof. The answer takes issue upon the allegations of plaintiff’s ownership, and also alleges “that the predecessors in interest of the defendant entered upon and built the railroad over and across the said lands with the full knowledge, consent, and acquiescence of the then owners of the same, and that, ever since its purchase and operation of the said railroad it has continued to use and occupy the said strip of land for its railway purposes until the commencement of this action, without notice from the plaintiff or other persons that its use and occupation thereof was in any manner unlawful, and without objection from the plaintiff or other persons; that the piece of railroad built and constructed as aforesaid is a part of its line of railway from Wells to Mankato, and is necessary to the proper enjoyment of its rights and franchises, and to the discharge of its duty to the public as a carrier of freight and passengers.” It also alleges that it is ready and willing to make compensation for the damages arising from the appropriation of the land in question, and therefore asks that they be ascertained as provided by the statute by the jury in this action, if the plaintiff on the trial shall establish his right to recover the said strip of land.

1. The evidence sustained the allegations of plaintiff’s title and ownership, and there was no evidence in the case tending to show that defendant’s occupancy of the premises was lawful, except that the same was by the license, express or implied, of the grantors of the plaintiff.

If the original entry or subsequent occupancy of the premises, to the time of plaintiff’s purchase, was by the license' of the grantors of the plaintiff, such license is a protection for any acts done under it; and in any event the plaintiff would have no right of action for use and occupation or trespasses committed by defendant in the construction or operation of its road thereon prior to his purchase, unless he had acquired such right by assignment. It did not pass by the conveyance of the land.

But such license, if any there was, was subject to be revoked at any time by the licensor; and thereafter the defendant would become a trespasser, and the landowner would be' entitled to his remedy either in trespass or ejectment, as he might be advised. The sale and conveyance of the land to the plaintiff was by itself a revocation of any previous license, and the plaintiff had a right immediately thereafter to bring his action to recover the possession. Eggleston v. New York & Harlem R. Co., 35 Barb. 162; Miller v. Auburn & Syracuse R. Co., 6 Hill, 61; 2 Amer. Lead. Cas. (5th Ed.) 576; Johnson v. Skillman, 29 Minn. 95, (12 N. W. Rep. 149.) Plaintiff’s right of action is not impaired by his inaction or delay in seeking his legal remedy. Defendant acquired no rights in the land, or to the possession, by its entry and occupation. On the contrary, it has been a continuous trespasser, except as to acts done under the license. The contention of the defendant that by its entry and possession, and the construction of its road, it lawfully appropriated the land, and that the right to compensation therefor accrued to the plaintiff’s grantor, finds no support in the decisions of this court. The title was never divested. It passed to the plaintiff, and as to him the defendant is simply a trespasser; and it can only acquire the right to use the same by grant or condemnation proceedings, as provided by law. Lamm v. Chicago, St. P., M. & O. Ry. Co., 45 Minn. 73, 77, (47 N. W. Rep. 455;) Galway v. Metropolitan Elev. Ry. Co., 128 N. Y. 132, (28 N. E. Rep. 479.)

The plaintiff was clearly entitled to recover the premises in question unless the defendant availed itself of its privilege under the statute of having its damages assessed in the same action.

2. The court having denied defendant’s application to withdraw the claim set up in its answer for an assessment of damages as for a condemnation of the land, the case was heard and disposed of upon the merits of such application, and a verdict rendered, assessing the damages accordingly.

The right of way claimed by defendant, and occupied by it, extends through seven forty-acre tracts or government subdivisions. It claims that plaintiff’s damages should be limited to those tracts actually crossed by the railway, and those which at the time of the'construction of the road were part and parcel of the tracts so> crossed, so as to form therewith entire tracts or bodies of land, owned by one common owner. The court, however, left it to the jury to determine from the evidence whether the body of land in question claimed and owned by the plaintiff when the action was brought and at the time of the trial was so situated, occupied, and used, taken together, as to constitute one' farm. It is a well-established rule that the owner is entitled to have his compensation or damages assessed for the injury to the entire tract of which the land appropriated is a part, and mere artificial or nominal lines of division are not material where the several lots or parcels adjoin, and are held and used for a common pur.pose, so that they may properly be treated as an entirety for the assessment of damages. The evidence tended to show that the whole tract in this case constituted one farm; and though very large in extent, we are not prepared to say that the question was not properly left to the jury. It was for the jury to ascertain the extent and nature of the injury, subject to the rules of law; and if some portions were not affected at all, and some less than others, these were matters which they would be expected to consider in making up their estimate. The court also properly instructed the jury that the damages were to be assessed as of the time of the trial. The condition of the property and state of the title at that time must govern in determining the amount of plaintiff’s compensation. It was not material, therefore, that plaintiff’s farm had been enlarged by the purchase of adjacent tracts subsequent to the construction of the road, and prior to the condemnation proceedings. Whether the land in question constituted at the time of the trial one tract or farm, and the extent which the whole or any portion thereof might have been injured, were questions for the jury. It is clear that a body of land may be so large, though owned by one person and used for a common purpose, that all portions of it would not be injuriously affected^ and the line would have to be drawn somewhere within reasonable1 limits; but this would necessarily be determined upon the evidence disclosing the facts and circumstances in each particular case. In this case the damages assessed appear to be very large, but the amount thereof is not among the errors assigned on this appeal. •

3. At the trial, before any testimony was introduced, the record shows that “the defendant moved the court for leave to withdraw all that portion of its answer that seeks to obtain a condemnation of the land alleged to be the right of way strip; thereby leaving the issue to be tried as originally made by the complaint, with the denials of the answer.” This application, respondent claims, should be interpreted as an application to the court to amend the answer by striking out and eliminating therefrom the claim for an assessment of damages under the statute. Upon the argument in this court, the defendant’s counsel insists that it was entitled to abandon the condemnation proceedings as a matter of strict legal right. And this is, we think, the correct view of the law. It differs from the case of Witt v. St. Paul & N. P. Ry. Co., 35 Minn. 404, (29 N. W. Rep. 161,) for the reason that in this ease such abandonment leaves plaintiff’s remedy wholly unimpaired in the suit already pending, for the recovery of his property with damages, — just the remedy he asks for, and is entitled to by law, if he is the owner and there is to be no condemnation. It resembles the case of an ordinary counterclaim in an answer, which the defendant may withdraw before or at any time during the trial, upon the proper notice or order of the court, filed or made part of the record. Brown v. Butler, 12 N. Y. Supp. 810. But the majority of the court is of the opinion that the defendant did not, by its application, withdraw or show an intention to assert its legal right to withdraw its statutory claim for an assessment, but that it was an application in form addressed to the discretion of the trial judge, and he would have a right to so consider it and dispose of it; and so considered, there was no abuse of discretion in denying it. But I am inclined to think that it was error, because the defendant had the right to abandon, and the application should be deemed as a motion to have the claim for an assessment expunged from the record, so as to show such withdrawal; and such motions, when the legal rights of the parties are clear, should not be given a strict or technical construction, or deemed discretionary, merely.

This disposes of all-the assignments of error which we deem necessary to consider.

Order affirmed.

(Opinion published 52 N. W. Rep. 977.)