Omaha Bridge & Terminal Railway Co. v. Whitney

94 N.W. 513, 68 Neb. 389, 1903 Neb. LEXIS 171

• Court: Nebraska Supreme Court
• Decided: April 9, 1903
• Docket: No. 12,710
• Status: Published

Opinions

Hastings, C.

The question in this case is the ownership of certain railroad embankments, riprapping, rails and ties of an agreed value of $3,979, which are upon the premises in East Omaha sought by the plaintiff in error to be condemned for its right of way. The track was originally laid in 1889 and 1890 by the Union Pacific Railroad Company. The riprapping was placed in 1891, and the Union Pacific Company operated the line until March, 1894, when the plaintiff in error acquired it by assignment from the Union Pacific Company, through the Nebraska Construction Company, under a decree of the United States court, in connection with other portions of the same line, and in consideration of the sum of $85,000. In accordance with this decree, and upon the payment of the $85,000, the Union Pacific Company turned over to the bridge and terminal company about seven miles of trackage, and the bridge and terminal company went into possession, and have used and occupied it ever since. Neither the Union Pacific Company nor the bridge and terminal company made any claim to possessing the right of way over the premises on which this particular portion of track was located, and in May, 1900, the bridge and terminal company filed in the county court of Douglas county its petition, alleging that it was duly incorporated under the laws of the state of Nebraska as a railroad company, and for the purpose of constructing a railroad bridge over the Missouri river, and operating a railway line between the cities of Council Bluffs and Omaha, and that a part of its road Avas located over the land in question in these proceedings. Appraisers were appointed, who returned an assessment of the value of the land sought to be taken. An appeal was taken from their assessment by the owners of the lands, and a hearing had, and the value of the lands taken was assessed at $9,614.50. From this finding as to the value of the lands no appeal has been taken. The question as to the ownership of the railway trackage over it, for the securing of the location for Avliich the condemnation proceedings were taken, was, by stipulation, separately tried, and the court found that the railway trackage, embankments and riprapping, of the agreed value of $3,979, was the property of the owners of the land, and not of the bridge and terminal company, and added to the damages returned by the jury the sum of $3,979. A motion for neAV trial having been overruled, from this last portion of the judgment error proceedings were taken, and the question now in this action is simply the ownership of this partic.ular portion of the railroad track, embankments and rip-rapping.

The title of the defendants in error to these premises is-by virtue of deeds from the Council Bluffs & Nebraska Ferry Company and from Anthony W. Street, its trustee, made in December, .1892. Just previous to these conveyances, and as preliminary to them, the Union Pacific Company made in December, 1892, to Street, a deed reciting that there -had been certain controversies between the Union Pacific Railroad Company, the East Omaha Land Company, the Council Bluffs & Nebraska Ferry Company, and Anthony W. Street, its trustee, with respect to the ownership of certain lands in the county of Pottawattamie and state of Iowa; that in a suit pending between the said parties in the circuit court of the United States for the district of Nebraska, to settle their respective interests in such real estate, the parties had settled their respective interests in such real estate, and determined the portions belonging to each, and in such settlement the Union Pacific Railroad Company had agreed to convey these premises in question to such persons as the ferry company and Street, its trustee, should designate, and that said Anthony W. Street, trustee, had been designated as such grantee; that the Union Pacific Company, therefore, in consideration of the sum of fl and of the premises aforesaid, “granted, bargained, sold, demised and quitclaimed, and by these presents does grant, bargain, sell, demise and quitclaim,” to Street, the lands on which this railroad track is situated. The deeds of the.ferry company and of Street to defendants each contained the proviso, “subject also to right of way, if any, fifty feet wide, now occupied by tracks of Union Pacific Railroad Company.”

It is clear that the railway company constructed this track, and did so after the settlement of 1889. It is clear that both the ferry company and Street were aware of such construction, and of the presence of the railroad track upon these premises, and the continuance in their use by the Unión Pacific Company. They discontinued their injunction proceedings against -such use of their land as a part of the settlement of 1889. The assignment of the Union Pacific Company’s interest in this trackage to the East Omaha Land Company was pursuant to a decree of court, as stated before, and on the same day the East Omaha Land Company assigned its right in the trackage to the Nebraska Construction Company, which at once assigned to the bridge and terminal company, plaintiff in error.

The question presented, therefore, is simply, whether or not, after the settlement of the “divers controversies and disputes” between the Union Pacific Company and the East Omaha Land Company and the Council Bluffs and Nebraska Ferry Company, in 1889, and after the making-of the deed by the Union Pacific Company in 1892, it still retained its ownership of 1,251 feet of trackage, embankments and riprapping on this land which purported to be conveyed by the deed. If the deed conveyed' the track to Street, as it assumed to convey the land on which it was ^situated, then Street’s deed to defendants carried the track to them, and their judgment for its value is right.

It is true that neither party will quite admit that this is the sole question in the case; or, rather, after doing so, each seeks to indicate a line of retreat. The plaintiff, after admitting that this land in question is embraced within the limits of the specific description in the deed of the Union Pacific Company to Street, urges that it is excluded by the recital that the conveyance is of certain lands “in Pottawattamie county, in the state of Iowa,” whereas these lands are in Nebraska. It seems unnecessary to discuss this contention. The specific description will control the general recital. There seems no doubt as to the intention of the parties as gathered from the instruments and the facts to which it is to be applied.

The defendants urge that the decree under which the trackage was assigned to the plaintiff, relates to trackage on “lands of the East Omaha Land Company”; that the decree found the $85,000, in consideration of which the assignment was made, was the amount of a lien held for expenditures by the Union Pacific Company on lands of the East Omaha Land Company in laying tracks under a contract for the latter company’s accommodation. But they admit that this track in question is specifically included in the description. They admit that the track was laid under the Union Pacific’s contract with the land company, which included an agreement by the latter to furnish right of way. The decree and assignment were evidently a settlement of the entire transaction, and included in specific terms the transfer of any rights the railroad company had in this piece of track. In the case of this decree and assignment, as in that of the deed to Street, the specific description and the intentions of the parties should control a general recital.

One other point made by the plaintiff, aside from the construction of this deed, should also be noted. This is the claim that in certain cases where a railroad company has without rights entered upon land and put down its track, on subsequently entering proceedings to condemn it, takes the premises as they were when it entered upon' them. Its right of eminent domain clothes it with a quasi public character, and the evident use and purpose of the taking prevents any presumption of an intention to dedicate as a part of the owner’s realty the things attached to the soil. It seems clear that such is not this case.

In this case, the track was laid under an agreement with the East Omaha Land Company and for its accommodation, and not with a view to acquiring any right of way by the railroad company. The right of way was to be furnished by the land company, and the railroad retained the ownership of its track, as the $85,000 decree shows. It would not seem that under such circumstances the right of seizure for public purposes would apply.

In any event, any inchoate right derived from taking the land and laying track upon it would pass under this deed of December, 1892, to Street, if the terms of the deed and the circumstances, taken together, indicate such an intention. We, therefore, do not hesitate to say that the sole question is whether or not the track in question went to Street, as trustee, by the railroad company’s deed of December, 1892. If it did, of course, there is no question that it went to defendants by Street’s deed to them, notwithstanding the express proviso in Street’s deed to them, “subject also to right of way, if any, over said premises fifty feet wide, now occupied by tracks of Union Pacific Railroad Company.” On the other hand, it seems that this proviso was ample to preserve to the railroad company and to its grantee, the plaintiff, any rights which, under all the circumstances, the railroad company retained as against Street.

The trial court in this present case held that the deed conveyed to Street all the rights of the Union Pacific Company, including everything which was attached to the soil, inasmuch as the deed made no «reservations. Plaintiff in error claims that the deed was made merely pursuant to the settlement of 1889, and that the track was laid after the settlement was completed; that the railroad company intended, as the recitals of the deed and the circumstances of its making show, merely to acknowledge that it had no interest in the land, and did not mean, and was not understood to mean, to abandon its claim to the trackage, embankments and riprapping, which had been built at the Union Pacific Company’s expense, with Street’s full knowledge and concurrence.

The identical question here was before the Iowa supreme court in Van Husen v. Omaha B. & T. R. Co., 118 Ia. 366, 92 N. W. 47. The portion of this same track really lying in the state of Iowa was held to have passed to Street under the railroad company’s deed of December, 1892, and from him to the defendants. This conclusion is reached on the ground that the description in the deed doenot disclose any ambiguity; that its terms are clearly sufficient to include the track, embankments, and riprapping, which are all appurtenant to the land, and therefore no evidence can be adduced to show any other intent than to include them.

It is held that the embankment thrown np out of the soil itself was certainly a part- of the real estate. The ties and rails and the riprapping are distinctly and strongly attached to the land. It is by the Iowa court conceded that where' such materials are attached by one not.the owner, they do not, in a proper case, become part of the realty. Here it is found by the Iowa court that they do, because they must, as against one who conveys that land together with all “appurtenances hereunto belonging,” be held to pass in the absence of any reservation.

The Iowa court grants the doctrine that one who, by sufferance of the OAvner, erects improvements for his own use on the land of another, retains their ownership in the absence of any restricting condition, and may remove them, or, if a railroad company, may institute condemnation proceedings, and acquire the land Avithout paying the owner, Avho never had a right in them, for their value. But it finds that such doctrine introduces nó reservations-into a deed. It finds the question at issue a very narrow one, and wholly settled by the doctrine of estoppel. It says that .the railroad company’s deed, if it did not convey this roadbed, conveyed nothing, and neither it nor its grantees should be permitted to claim this. It concedes that but for the estoppel in this deed the Union Pacific Company and its grantees would be at liberty to claim this embankment, track and riprapping so far as it consists of material brought there by the company, and is the result, of its efforts, as personal property. St. Louis, K. & S. W. R. Co. v. Nyce, 61 Kan. 394, 59 Pac. 1040, 48 L. R. A. 241; Justice v. Nesquehoning V. R. Co., 87 Pa. St. 28.

The Iowa court finds the reservations in the deeds of the ferry company and of Street of no importance, as they neither recognize nor affirm a right in the Union Pacific Company. Evidently, they are of no importance if the main thesis of the Iowa decision is allowed, namely, that the deed of 1892 left no rights in the Union Pacific Company as regards this portion of the tracks it was using and continued to use. If, however, there was no such estoppel as regards Street wrought by the deed to him against the railroad company’s claiming' an ownership of the track, it would seem that the acceptance of these subsequently made deeds would prevent defendants from claiming more rights than he had.

We entirely agree with the Iowa court that the question here turns upon the effect of this deed. We entirely disagree as to the particular estoppel which defendants may rely on. A deed which recites that it is made in considera- ’ tion of a previous agreement that the maker should be deemed to have no title to the lands purporting to be conveyed, can hardly constitute an estoppel against the grantor’s asserting, as against the grantee, that between the time of making the agreement and that of executing the deed he had no title, especially when in fact he never had one.

The agreement of 1889 does not, in terms, say that the .railroad company had no title. It does, however, recite that in settlement of litigation over the title and boundary of lands the three parties have mutually agreed to convey certain portions to each other. The making of this agreement certainly was an abandonment of any claim or title on the railroad’s part to this land. As against Street, who was a party to the agreement, it was certainly at liberty thereafter to say that any- improvement put by it subsequently on the land with his knowledge and consent was not so placed by it as owner, and did not become appurtenant to the soil.

Defendants are in no better position than Street. The railroad company was in possession of its improvements. In this state it has been held that the continued possession of a grantor is notice to the world of any interest he still retains in the land, even contrary to the express recitals of his deed. Kahre v. Rundle, 38 Neb. 315.

The reservations in the deeds of defendants expressly told them that their grantor was not covenanting against claims of the railroad company, and that defendants were getting only such rights as Street and the ferry company actually liad to that portion which the railroad company was occupying.

We are constrained to think that as against this deed, which recites that it is made pursuant to and in consideration of an agreement relinquishing all title to this land, which was made in 1889, the railroad company was at liberty to set up its ownership of improvements made by Street’s sufferance after the agreement, although they were not reserved. They were made at a time Avhen the railroad company was recognized by all parties to have no interest in the land. They were made distinctly for the maker’s OAvn purpose, and remained wholly under its control. While physically appurtenant to the soil, they were not so legally, and consequently did not pass Avith the subsequent deed made pursuant to the settlement, in which they are not in express terms either included or reserved. That Street so understood is clear from his reservations, which apprised the defendants that these were the railroad company’s tracks. To hold that this deed to Street estops any one from asserting that between 1889, when the agreement was made, and December, 1892, the date of the execution of the deed, the railroad company held no title to this land, is to “stick in the bark” of the doctrine as to estoppel by deed. This deed is anything but an assertion of title on the railroad company’s part during that time. Whatever effect is to be given to the surrounding circumstances and the situation of the subject matter of a. deed in determining the intentions of its parties, it is clear that the OAvnership of these improvements must become legally appurtenant to Street’s estate in the land before his conveyance to defendants can of itself vest them with such ownership. We are clear that it never became so appurtenant, and that there are no facts shown in the record that estop plaintiff from so claiming in this proceeding.

It is recommended that so much of the trial court’s action as added the agreed value of these improvements, to Avit, $3,979, to the judgment, be set aside and vacated, and that the judgment be affirmed for the amount found by the jury as the value of the 2.87 acres of land taken, to wit, $9,614.60.

1. Eminent Domain: Award: Value oe Improvements. Ordinarily, when a railroad company enters upon land of another and constructs a road-bed and tracks thereon, and occupies the land for right of way purposes, and thereafter condemnation proceedings are had to appropriate the land on which the road-bed is constructed, under the law of eminent domain the landowner can not in such proceedings have the value of such improvements included in his award. 2. Agreement With Third Parties: Private Use. Where, however, such improvements are made on the land of another under a contract, arrangement or agreement with third parties, to be used for private purposes, the law relative to the seizure of property for a public use does not apply. 3. Determination of Eights. The rights of parties in such a case are to be measured and determined by legal principles generally applicable to improvements in the nature of trade fixtures by a tenant or licensee in the possession and use of the real estate on which the improvements are made. 4. Eoad-bed and Track: Deed. A road-bed or embankment built out of the soil, and with riprapping for its protection, on which ties and rails are laid for use as a railway-track, is not an improvement placed upon land in the nature of a trade fixture, but is a part and parcel of the land itself, and where there are no exceptions or reservations will pass by a 'deed of conveyance as does the real estate on which constructed. 5. Estoppel by Deed. Whatever be the form or nature of the conveyance of real property, if the grantor therein sets forth PU the face of such instrument, by way of recital or averment, either in express terms or by necessary implication, that he is seized or possessed of a particular estate in the premises conveyed, then such grantor and all persons claiming under him are ever afterward estopped from denying that he was so seized and possessed at the time he made such conveyance. Hagensick v. Castor, 53 Neb. 495. Kirkpatrick and Lobingier, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, so much of the trial court’s action as added the agreed value of these improvements, to wit, $3,979, to the judgment, is set aside and vacated^ and the judgment affirmed for the amount found by the jury as the value of the 2.87 acres of land taken, to wit, $9,614.60.

Affirmed in part.