Ennis-Brown Co. v. Central Pac. Ry. Co.

235 F. 825, 149 C.C.A. 137, 1916 U.S. App. LEXIS 2220

Opinions

ROSS, Circuit Judge

(after stating the facts as above). It will be readily seen that, while the bills allege that the defendant companies are “engaged in the general business of railroad corporations as common carriers of passengers and freight,” and that the defendant Southern Pacific Company is, in the conduct of such business, in the exclusive possession of the property described in the bills, and that the defendant Central Pacific Railway Company “is not in possession of” it, they make no reference to the fact, alleged in the answer of the defendants to the original bills, that the Southern Pacific Company entered into the actual possession of the property about 50 years before the bringing of the suits under a lease from the pred ecessor in interest of the Central Pacific Railway Company, and has ever since held the same under such lease; and while the bills as amended allege the public character of the business of the Southern Pacific Company and the exclusive possession of that company of the property in question in the carrying on of such business, they do not allege that the complainant had any interest therein at the time that company took possession of the land in the carrying on of its business of common carrier of passengers and freight.

Now, what is the necessary result of all of this? If it be conceded that the Southern Pacific Company took possession of the property without any right whatever, and built its railroad tracks, sheds, and other structures in the prosecution of its business as common carrier, the law is well settled that the owner of the land, remaining inactive and permitting such expenditures, “will be estopped from maintaining either trespass or ejectment for the entry, and will be regarded as having acquiesced therein, and be restricted to a suit for damages.” Roberts v. Northern Pacific Railroad, 158 U. S. 1, 11, 15 Sup. Ct. 756, 758 (39 L. Ed. 873); Kindred v. Union Pacific Railroad Co., 225 U. S. 582, 32 Sup. Ct. 780, 56 L. Ed. 1216, and cases there cited. Indeed, it is conceded on behalf of the appellant that the latter cannot maintain an action of ejectment to recover the possession of the premises in question, because the defendant Southern Pacific Company is in possession thereof as a public service corporation; but it is insisted that the appellant has not “an adequate and complete remedy in an action for damages against said Southern Pacific Company, because damages for the taking of the land is not adequate or complete as a substitute for the rights of ownership in real property, and that under the allegations of the amended bills appellant could not be required to, accept damages unless the land involved be necessary to the exclusive use of appellee Southern Pacific Company as a public service corporation, and that it is entitled to test the question of the necessity of the taking (in equity) and is not compelled to admit the necessity and sue in damages”; and that position is largely based upon the decision of the Circuit Court of Appeals of the Eighth Circuit in the case of Stuart v. U. P. R. R. Co., 178 Fed. 753, 103 C. C. A. 89, where Judge Van Devanter (now Mr. Justice Van Devanter of the Supreme Court), in delivering the opinion of the court, said, among other things:

“It is true, generally speaking, that in the courts of the United States a suit to quiet title cannot be maintained by a complainant who is not in possession against a defendant who is in possession; and this is so because there is a plain, complete, and adequate remedy at law. Whitehead v. Shattuck, 138 U. S. 146, 150, 11 Sup. Ct. 276, 34 L. Ed. 873; United States Mining Co. v. Lawson, 67 C. C. A. 587, 134 Fed. 769; Lawson v. United States Mining Co., 207 U. S. 1, 9, 28 Sup. Ct. 15, 52 L. Ed. 65. But it also is true that in exceptional cases, where there is no such remedy at law, the general rule does not apply.”

And the court proceeded to show that that case was one of the exceptional ones. It was a suit to quiet title to a tract of 160 acres of land patented to the complainant by the government, across which extended the right of way of the defendant railroad company. Ex cept as occupied by the defendant company for purposes of its right of way, the land was not in the actual possession of either party. In holding that that suit was well brought in equity the court said:

“What really is the subject of the adverse claims of the parties is a strip 400 feet in width along the appellee’s railroad. Part of this is in the actual possession of the appellee, is occupied by permanent and costly railroad structures, and is being used as a right of way for strictly railroad purposes. If it be not true that the Pacific Railroad Acts granted a right of way 400 feet in width across the Eastman tract, it still is true that they authorized the acquisition, by agreement or condemnation, of a right of way thereover, not exceeding 200 feet in width. The owners of the tract did not insist that the railroad be not constructed and put in operation in advance of an exercise of this authority, but by their silence and inaction acquiesced in such construction and operation without any precedent agreement or condemnation. The railroad has been in operation since 1S70, and its continued operation has become a matter of large public concern. In addition, there is a pronounced and bona fide dispute as to how much of the tract has been occupied and used as a right of way; the appellants insisting that this occupancy and use have been confined to 25 feet or less on either side of the center line of the railroad, and the appellee insisting that they have extended to 50 feet or more on either side. In these circumstances it is apparent, as we think, that the appellants are entitled to a hearing and decision as to what extent the appellee is entitled to occupy and use the tract as a right of way, that they are not entitled to oust the appellee from its actual possession or to interrupt the operation of its railroad, and that their rights can be completely and adequately determined by a suit in equity in the nature of one to quiet title, but not otherwise. As «vas said in Northern Pacific Railroad Co. v. Smith, 171 U. S. 260, 271, 18 Sup. Ct. 794, 798, 43 L. Ed. 157: ‘There is abundant authority for the proposition that, while no man can be deprived of his property, even in the exercise of the right of eminent domain, unless he is compensated therefor, yet that the property holder, if cognizant of the facts, may, by permitting a railroad company, without objection, to take possession of the land, construct its track, and operate its road, preclude himself from a remedy by an action of ejectment. His remedy must be sought either in a suit in. equity, or in' a proceeding -under the statute, if one be provided, regulating the appropriating of private property for railroad purposes.’’ Other cases of like import are Roberts v. Northern Pacific R. R. Co., 158 U. S. 1, 11, 15 Sup. Ct. 756, 39 L. Ed. 873; Penn Life Ins. Co. v. Austin, 168 U. S. 685, 698, 18 Sup. Ct. 223, 42 L. Ed. 626; New York City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820; Donohue v. El Paso & Southwestern R. R. Co., 214 U. S. 499, 29 Sup. Ct. 698, 53 L. Ed. 1060. There may be cases in which an action for compensation or damages under the statute would afford a plain, complete, and adequate remedy; but this is not such a case, for, in the absence of a prior determination of the dispute respecting the width of the strip actually occupied and used as a right of way, such an action could not be maintained without either conceding the greater occupancy and use asserted by the appellee or risking a recovery of less than the actual damages. A remedy cannot be regarded as plain, complete, and adequate when to pursue it is to jeopardize a part of what is claimed, irrespective of the merits,”

It is thus apparent that the sole ground upon which that case was held a proper one for equity was the dispute and uncertainty over the extent of the actual possession of the defendant company and the limits of its right of way under the congressional grant, whereas in the present case the bills expressly allege that the defendant Southern Pacific Company is in the exclusive possession of the entire tract in controversy for purposes of public use. If not acquired by agreement from the owner of the property, beyond question it could have been condemned to the extent that it was necessary for those purposes. And in such an action both the necessity and the extent of the use are pure questions of law. It was so at common law, and it is so by statute of California. Said the Supreme Court in Kohl et al. v. United States, 91 U. S. 367, 376, 23 L. Ed. 449:

“The right of eminent domain always was a right at common law. _ It was not a right in equity, nor was it even the creature of a statute. _ The time of its exercise may have been prescribed by a statute; but the right itself was superior to any statute. That it was not enforced through the agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without a jury.”

The statute of California in providing* for the condemnation of private property declares, among other things, that before such property can be taken it must appear “(1) that the use to which it is to be applied is a use authorized by law; (2) that the taking is necessary to such use”—which latter provision necessarily includes the right to determine to what extent the proposed taking is necessary. Section 1241, Code Civil Procedure.

Taking the appellant to have the legal title to the land in question, as alleged in the bills, they nevertheless show upon their face that the defendant Southern Pacific Company is in the actual possession and use of the whole of it in pursuit of it's business as common carrier of passengers and freight, and it must be, as it is, conceded by the appellant that it is not entitled to retake such possession, but, as has. been shown, is restricted to a suit for such damages as may have been sustained by the owner. Such right of action for damages, however, is, as the Supreme Court has distinctly held in the cases first above cited, in the party holding the title at the time of the original wrongful entry. The hills in question fail to show that the complainant was such owner at that time, and, the appellant declining to further amend, the court below, in our opinion, was right in dismissing them—it being, we think, idle to contend that the bills, in view of their averments, make any case either in equity or at law against the defendant Central Pacific Railway Company cognizable in a court of the United States, for they show, not only that that company as well as the complainant was out of possession of the property at the time of the commencement of the suit, but that the whole of it was then in the actual possession of a common carrier of passengers and freight, actively engaged in such transportation business, for which reason the alleged owner is, as has been seen, precluded from recovering the property itself, but is remitted to an action at law for the recovery of such damages as may have been sustained by the taking and appropriating of the property to public use. Authorities supra.

The judgment is affirmed.