Chollar-Potosi Mining Co. v. Kennedy , 3 Nev. 361 ( 1867 )

Opinion by

Beatty, C. J., Lewis, J.,

concurring specially.

In the year 1860 certain parties took steps to appropriate and take up for private use a portion of public land in or near Virginia City.

Subsequently, in April and May of 1861, the Potosi Company, a mining association, laid out* and built a road through the same land. Since then the Potosi Company has been consolidated with the Chollar Company, and the two are now incorporated as the Chollar-Potosi .Company.

The Potosi Company and the Chollar-Potosi Company have continued since May, 1861, to use and enjoy that road, and have suffered all persons having business or pleasure leading them to the Potosi works to use the same freely, as if it were a public road. In May, 1867, the defendants built a fence across the Potosi road, thereby obstructing travel on the same. The plaintiff, which has succeeded to the Potosi Company’s rights, then filed its bill to enjoin the defendants from obstructing this road.

The defendants, in answer to this bill filed, set up the fact of the location in 1860, and claim that as the successors in interest of those who located this tract of land they have exclusive right of possession, and consequently the right to obstruct the road.

Whether the defendants are entitled to the .possession of the land they or their predecessors attempted to appropriate in 1860, it is unnecessary to inquire under our view of the case. The plaintiff claims an absolute right to the road, asserts continuous and uninterrupted possession of the same for more than five years previous to the obstruction of the road by defendants, and relies on the statute of limitations as securing its rights. The plaintiff also claims a right of way by prescription.

The defendants (respondents in this Court) claim that the appellant is not entitled to protection under the Statute of Limitations, for two reasons:

First, because the appellant (plaintiff in the Court below) is a ioreigh corporation, and is therefore not protected by the statute. Second, because the road is not land, but a mere incorporeal hereditament, and therefore is not included within the terms of our statute in regard to entries on land. Lastly, it is contended by respondents that the appellant cannot claim any rights by prescription, because none such have been pleaded.

We will examine these three propositions seriatim. And first as to the point, how is this question of limitations affected by the fact of plaintiff’s being a foreign corporation, or a corporation created in a neighboring State ?

The fifth section of our Statute of Limitations reads as follows :

“ No cause of action or defense to an action founded upon the title to real property, or to rents or to services out of the same, shall be effectual, unless it appear that the person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor or grantor of such person was seized or possessed of the premises in question within five years before the commencement of the act in respect to which such action is prosecuted, or defense is made.”

Then follow several sections in regard to the effect of forcible entry, defining what shall be adverse possession, etc.

Sections 14 and 15 read as follows :

“ Seo. 14. If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents or services, out of the same be, at the time such title shall first descend or accrue, either: First, within the age of twenty-one years ; or second, insane ; or third, 'imprisoned on a criminal charge, or m execution upon conviction of a criminal offense for a term less than life; or fourth, a married woman.”

“ Sec. 15. The time during which such disability shall continue shall not be deemed any portion of the time in this Act limited for the commencement of such action, or the making of such entry or defense, but such action may be commenced, or entry or defense made within the period of five years after such disability ; but such action shall not be commenced, or entry or defense made after that period.”

Section 16, et sequitur to Sec. 21, prescribes limitations for personal actions.

Sections 21 and 22 read as follows :

“ Section 21. If, when the cause of action shall accrue against a person, he is out of the Territory, the action may be commenced within the term herein limited after his return to the Territory; and if, after the cause of action shall have accrued, he depart the territory, the time of his absence shall not be part of the time limited for the commencement of the action.”

“ Section 22. If a person entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, or against a Sheriff or other officer for an escape, be at the time the cause of action accrued, either: First, within the age of twenty-one years; or second, insane; or third, imprisoned on a criminal charge, or in execution under the sentence of a criminal Court, for a term less than his natural life; or fourth, a married woman; the time of such disability shall not be a part of the time limited for the commencement of the action.”

Respondent contends that a foreign corporation being in contemplation of law always absent from the State, the twenty-first section prevents the statute from ever running in its favor. Several cases are referred.to on this point, some of which do clearly hold that in personal actions under a statute similar to ours, it never runs in favor of a foreign corporation. There is also one case cited from the Tenth Indiana Reports, where the action was for the recovery of land, where the Court had held that the absence of the defendant would excuse the bringing of an action within the time limited by statute. This latter case we will notice presently. With regard to the question which seems to be mooted, whether in a personal action the fact that the defendants being a foreign corporation is to have the same effect in suspending the running of the statute as the absence from the State of a natural person, we do not think need be determined in this case.

The twenty-first section, we are satisfied, in no manner qualifies the provisions of the fifth section. It simply provides that where a cause of action accrues against a person out of the Territory, (now State) or such person departs from the Territory, the statute shall not run during the absence of the defendant.

But Sec. 5 imposes a general inability to sue or defend upon any right claimed in real estate, unless the party suing or defending shall have been in possession of the real estate within five years last past. The limitation being here in respect to the possession of the land, we do not see how the provisions of Section 21 could qualify this Section 5, unless the land should have absented itself from the State. This, we believe, is not claimed.

But it is said by respondent that whatever may be the language of Section 5, the spirit and intent is to impose a limitation of five years to the bringing of real actions, and this Section 21 must, if liberally and beneficially interpreted, excuse a party from bringing his action as well for realty as for personal property or damages where the person in adverse interest is absent from the State when a cause of action arises.

An examination of the whole Act will, we think, clearly show that such was no't the intention of the Legislature. And we think the distinction in the two classes of cases was eminently wise and proper. Section 5 prescribes the limitation to real actions in general terms. Sections 14 and 15 make the exceptions to the operation of the general rule, and we think it was evident that these are intended to constitute the only exceptions to the general rule. If it had been intended to make other exceptions to the running of the statute in real actions, they would most likely have been either incorporated in Sections 14 and 15, or added in a separate section in immediate connection with them. But after Section 15 comes the limitation in personal actions in Section 16 ; and then in Sections 21 and 22 come the exceptions to the limitations imposed in Section 16. Neither the language nor the context seem to connect Sections 21 or 22 with Section 5. Indeed Section 22 is expressly limited to actions other than for real property, and Section 21 is not by its terms applicable to the limitations imposed in Section 5. Here was a party who had been five years in the uninterrupted possession of a piece of land, using it as a road. This showed' a prima facie right to continue to use such land as a road. Respondents enter upon and build a fence across it. They are sued, and in answer to the prima facie case made out by plaintiff say: “We had a right to enter, because we took up and appropriated this land through which the road runs some seven years since.” But they fail to show that they had been in possession of this land within five years. This defense then wants one element of being a good one, for the law says: “ No * * defense to an action founded upon the title to real property * * * shall be effectual unless it appear that the person * * * making the defense * * * was seized or possessed of the premises in question within five years before the commencement of the Act in respect to which such * * * defense [is] made.”

Respondent, however, insists that this view of the case is in direct conflict with the decision of the Supreme Court of the State of Indiana, in the case of Lagow and others v. Neilson. Without ex pressing any opinion as to the correctness of the decision of the Indiana Court, we think it can be safely affirmed that it can afford but little aid in interpreting our statute. In that case the defendant Neilson, for his third plea, says: “ That the cause of action did not accrue to the plaintiff within twenty years next before this action was brought.” The Court, in speaking of the third plea, or “ third paragraph of the answer,” as they call it, use this language :

“ The reply to the third paragraph of the answer is as follows: ‘ Plaintiffs say that for twenty years next before the commencement of this action, Neilson, the defendant, was a nonresident of this State.’ To this reply the Court sustained a demurrer. And the question to settle is, does the reply avoid the defense of the Statute of Limitations ?

“ ‘ Section 216 of that statute declares that the time during which the defendant is a nonresident of the State, or absent on public business, shall not be computed in any of the periods of limitation. But when the cause has been fully barred by the laws of the place where the defendant has resided, such bar shall be the same defense here as though it had arisen within this State.’ (2 R. S., p. 77.)

“ It is insisted that this section was intended- to apply to personal actions, and not to those instituted for the recovery of real property. We are not inclined to adopt that construction. As contended, the concluding branch of the section should not be so construed as to allow the law of limitation of a sister State to be used here in regard to actions for the realty; and it may be that, for the recovery of real estate, a party is never prevented from bringing his suit by the nonresidency of any claimant or owner; still these conclusions, not being inconsistent with the very explicit language used in the first branch of the enactment, cannot be allowed to control it. The phrase ‘ shall not be computed in any of the periods of limitation,’ evidently refers to all the periods of limitation definitely fixed by the statute; hence there seems to be no room left for construction. The demurrer was not well taken.”

The difference between the language of Section 216 of the Indiana statute and Section 21 of our Act is striking. “ Any of the periods of limitation ” is a much more compreheusive phrase than “ when the cause of action shall accrue against a person.” The first would readily include a period of time after the lapse of which an entry on land would be illegal. The latter does not by its terms refer to any such period. Besides, the terms of the Indiana statute (which is not accessible to us) in regard to the limitation of real actions may be entirely different from ours. The Indiana Court seems to have arrived at the conclusion it adopted only because of the explicit language of their statute. Ours is so very different that the case referred to afforded us but little aid in constructing it. We are satisfied that the nonresidence of a party claiming real estate does not affect or qualify the provisions of Section 5 of our Act. If land is vacant, the owner can take peaceable possession without suit. If occupied, he can bring suit against the occupant, and it is not necessary to inquire what the status of the occupier is. If the land is occupied by a mere servant, as between him and his employer, the possession is in the master and not the servant. But if a third party owns the land, both are trespassers as against him, and a suit against the servant is just as effectual as against the master.

It is, however, contended by respondents that the record does not show that the appellant had or claimed to have any land, but merely a right of way over land. The language of the complaint is as follows : “ That it is now, and for more than five years last past, it and its predecessors in interest have been the owners of and in the possession and actual use and enjoyment of a certain road, situate in said county, in the city of Virginia, leading from what is known as the Potosi dump, near the mouth of the Potosi tunnel southward, near the line of E street in said city, into Gold Hill, and thence westward into 0 street; said road being about thirty feet wide and about half a mile in length, and known as the Potosi Road.”

The proof shows clearly that the Potosi Company surveyed and graded this road for travel in 1861, and since then have been continuously using it as a road.

Respondents contend that this averment and proof does not show an occupation or possessory right to the land over which the road is built, but merely a claim to a right of way. In support of this view they cite the opinion written by Mr. Justice Shatter, and apparently concurred in by the entire bench of the Supreme Court of California, in the case of Wood et al. v. Truckee Turnpike Co., 24 Cal. 487. We quote from that opinion the following language: “ The plaintiffs acquired nothing by the purchase of the road to which the action of ejectment has any remedial relations. ‘ Road’ is a legal term strictly synonymous with the term £ way,’ and in the complaint, and throughout all the title papers of the plaintiffs, their identity is fully recognized. A way is an easement, and consists in the right of passing over another man’s ground. (Wash, on Eas. 161.) It is an incorporeal hereditament, a servitude imposed upon corporeal property, and not a part of it. It gives no right to possess the land upon which it is imposed, but a right merely to the party in whom the way is vested to enjoy the way. Neither is it considered that the owner of the way is entitled, by reason of such ownership, to a participation in the rents and profits arising from the land upon which the easement is imposed. (Wash, on Eas. 8.) A deed of way, or of a right of way, would pass to the grantee no title to or interest in the land.”

The main point here is that the word ££ road ” is exactly synonymous with “way.” This proposition we conceive to be utterly untenable. It is true that the term “ way ” is sometimes used in the same sense as road. • Sometimes we call a road a street, a lane, etc., a way — though this is, perhaps, an improper use of the term “ way.”

But Mr. Washburn, when defining “ way ” as an easement, uses the word in a strictly legal sense. “ Way,” in its legal, technical sense, means nearly the same thing as “right of way.” Or in other words, the right of one person, of several persons, or of the community at large, to pass over the land of another.

Webster, among other definitions of a road, says it is the “ ground appropriated for travel, forming a communication,” etc.

Bouvier defines a road as “ a passage through the country for the use of the people.” He also says: “ The public have the use of roads. But the owners of the land through which they are made, or which bound upon the roads, have prima fade- a fee in such highway.” Or in plain English, the public does not usually own the soil over which roads are constructed, but only a. perpetual right to use that soil for some particular purpose.

We cannot find that the word “road” is anywhere used or defined, save in the opinion just quoted, as being synonymous with right of way. In fact, we feel certain it is never so used in common conversation, in ordinary writing, nor in legal works. Road means any piece of land used or appropriated for travel. It may be so appropriated by an individual, a corporation or the public. Where roads are constructed by turnpike and railroad companies, sometimes they acquire a complete title to the land over which their road is built, and sometimes only the right of way. So the public may, if it chooses, buy the land over which a public way is to be established if the individual owner is willing to sell it, or may, which is more usual, only purchase or procure by the proper proceedings the right of way for such road. The road however is one thing, the right of way is another, and very different.

If an individual wishes to make a road for his own use, and can buy the land over which he wishes to pass for precisely the same money that it would cost to acquire the right of way, undoubtedly he would buy rather than acquire a mere easement. The public lands are open here to be appropriated by any one who desires to do so. The first appropriator has always been considered and held by the Courts of this State as the owner of the land as against all the world except the Government of the United-States. We see no reason why one who appropriates a portion of the public domain for the purposes of a road, is not as well entitled to the protection of the Courts as one who appropriates a fraction of the same domain for a- mill-site or cornfield.

If the public were to lay out a road eighty feet in width through the farm of A, and he were to make a conveyance to B, describing the property sold as a road eighty feet in width and one mile in length, passing through the farm of the grantor, we think it would be just as good a conveyance as if he were to describe the property sold as a piece of land eighty feet wide and one mile in length, extending from one side of grantor’s farm to the other, and being the same land over which a public road is laid out. The meaning in either case would be equally obvious, and in either case' the purchaser would get the fee of the land subject to the public easement.

The language of the complaint and the proof shows the plaintiff’s right to the land (not a mere easement) over which the road runs. Having been for five years in the uninterrupted possession of the same, plaintiff is protected by the Statute of Limitations, and the acts of the defendant in stopping up the road were tortious, and such as to entitle the plaintiff to the relief sought.

But even admitting that plaintiff did not appropriate the soil, but only claimed the right of way when locating the road, we do not see how that could aid the defendants. An uninterrupted adverse enjoyment of the right of way for more than five years would by prescription establish the plaintiff’s right to continue in the enjoyment of the same privileges. Here the plaintiff and those through whom it derives title, were in the enjoyment of this road for more than five years without disturbance. It is true that before the expmation of five years, there was a claim asserted adverse to their continued enjoyment of this right. The plaintiff or its agent was informed by Mr. DeLong that other parties owned or claimed the land over which their road ran; a proposal was made to sell to plaintiff their right to continue the road, or something of this kind. But a mere proposition of this kind does not amount to a disturbance.

The enjoyment must therefore be considered as continuous and. uninterrupted during a period exceeding five years.

The point that the possession or enjoyment is not shown to have been adverse, we think is not well taken. Whenever a party assumes and exercises a right of way, openly, notoriously-and continuously, without asking the consent of the owner of the land, and without in any way manifesting by word or deed that he is exercising the right as a favor or license given him by the owner of the soil, it must be considered as exercised adversely to the owner of the land. This appears clearly to have been a case of that sort. At least, such facts are shown as make a prima facie case of adverse holding, and nothing is attempted to be shown to the contrary by the defendants. They do not attempt to show that this privilege was exercised in subordination to their rights.

The respondents further contend that if the plaintiff had any rights established by prescription, it has not properly pleaded such prescription, and therefore it cannot avail itself of such right in this Court.

Ohitty, in his work on pleadings, Vol. 1, p. 380, speaking about the particularity with Avhich a plaintiff’s case should be stated in his declaration, says: “ But it is now fully settled that in a personal action against a wrong-doer for the recovery of damages, and not the land itself, it is sufficient at common laAV to state in the declaration that the plaintiff, at the time the injury Avas committed, Avas possessed of a house or land, etc.; and that by reason of such possession he was entitled to the common of pasture, way, or other right, in the exercise of which he has been disturbedand further says, on page 381: “ So, if the declaration be for diverting a Avater course from the plaintiff’s mill, his possession of the mill should be concisely stated, and that by reason thereof he ought to have had the use and benefit of the Avater course, Avithout stating that it Avas an ancient mill or disclosing the particular grounds upon which the right to 'the Avater is claimed. And in an action for a disturbance of a right of common, or Avay, or of a seat or peAV in a church, the declaration states the possession of a house or land, etc.; and that by reason thereof the plaintiff Avas entitled to the right, in the exercise of which he had been disturbed.”

We think the complaint here is as specific, and shows the ground of appellant’s claim with as much particularity, as Mr. Ohitty seems to think is necessary in a common Day declaration. Our system of pleading is extremely liberal, and we are not disposed to hold that parties shall lose their rights merely because they do not plead them Avith the greatest precision and nicety. The complaint shows the defendant clearly the nature of the plaintiff’s claim, and under our system that is sufficient.

The judgment of the Court below is reversed, and that Court will take further proceedings in the case according to the views herein expressed.