F. E. BOYD and HELEN E. BOYD, Appellants,
THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Mohave. Ross H. Blakely, Judge. Judgment reversed and cause remanded, with instructions.
Messrs. Smith & Faulkner, for Appellants.
Messrs. Chalmers, Fennemore & Nairn, Mr. Louis L. Wallace and Mr. Carl D. Hammond, for Appellee.
[39 Ariz. 155] LOCKWOOD, J.
Hellen Huntley, hereinafter called decedent, on October 10, 1910, made a homestead entry on the northeast half of the northeast quarter of section 28, township 21 north, range 17 west, G. & S.R.B. & M. Long prior to this time, and when they were unoccupied government lands, the predecessors in interest of the Atchison, Topeka & Santa Fe Railway Company, a corporation, hereinafter called appellee, had constructed what is known as its first, or west-bound main line of railroad across said premises, and thereby, under the provisions of the act of Congress of July 27, 1866 (14 Stat. 292, 294), acquired a right of way one hundred feet wide on each side of the center of such track.
During the early part of 1922 the agents and employees of appellee entered upon said premises and commenced the construction of what is known as appellee's [39 Ariz. 156] east bound, or second main line track, which practically parallels its first, or west-bound track, but in many places is not on the right of way granted by the act of Congress aforementioned. The east-bound track was completed during the early part of 1923. Decedent made final proof on her homestead above, and final certificate was issued to her November 10, 1922, patent following in due course on March 19, 1923. She died some time thereafter, and her estate was duly administered. On January 3, 1927, an administrator's deed was issued, conveying the property in question to one C. W. Clinton, who in turn conveyed his interest therein to F. E. Boyd and wife, hereinafter called appellants.
In October, 1929, appellants filed their complaint in this cause under the provisions of article 8, chapter 93, Revised Code of 1928 (sections 4356-4358), seeking to quiet title to the entire homestead entry above described against appellee, and also filed another action to recover rent for the use of the portion of the premises occupied by the railroad for its east-bound track as aforesaid. Appellee answered, setting up the building of the east-bound track as aforesaid, and "that said Hellen Huntley, in her lifetime, made no protest or claim whatsoever to or against defendant with respect to the said lands and premises so taken by defendant, and fully acquiesced in the use of same by defendant for its right of way, and railroad purposes, and made no protest whatsoever or any claim or demand against defendant"; and further filed a cross-complaint asking that its title in and to that portion of the premises occupied by both its east-bound and west-bound tracks be quieted.
Various motions and demurrers to both the complaint and the cross-complaint were duly filed and passed on by the court, and the matter went to trial [39 Ariz. 157] before a jury, which, in reply to two special interrogatories, found that the east-bound track in question was constructed during Hellen Huntley's lifetime, and with her knowledge, and that appellants purchased the land in question from her estate knowing that the appellee was in possession of and maintaining its track across said
land, and thereupon the jury returned a general verdict in favor of appellee. The court rendered judgment on the verdict, denying appellants' claim, and quieting the title of appellee to that portion of the ground covered by the right of way of both west and east bound tracks as described in the cross-complaint. In the motion for new trial appellants contended that they were at least entitled to have their title quieted to that portion of the homestead not covered by the respective rights of way, and the court ordered that a new trial would be granted unless appellee filed a disclaimer to all such premises except the two rights of way, which disclaimer was duly filed, whereupon the motion for new trial was denied, and appellants have brought the case before us for review.
There are some thirty-one separate and distinct assignments of error, but we prefer to consider the case rather on the legal propositions involved under the foregoing statement of facts than to discuss these assignments separately. It is admitted by both parties that appellee was the owner in fee simple of the right of way for its west-bound track, granted under the act of Congress aforesaid, so its title to that portion of the land may be eliminated from our discussion of the issues.
The first question we consider is what, if any, right did appellee acquire by entering upon the premises and constructing and operating its east-bound track thereon? This question has frequently been before the courts, and appellants admit that the case of [39 Ariz. 158] Roberts v. Northern Pacific R.R. Co., 158 U.S. 1, 39 L.Ed. 873, 15 S.Ct. 756, is in point. Therein the court said: "So, too, it has been frequently held that if a landowner, knowing that a railroad company has entered upon his land, and is engaged in constructing its road without having complied with the statute, requiring either payment by agreement or proceedings to condemn, remains inactive, and permits them to go on and expend large sums in the work, he 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. Lexington & O.R. Co. v. Ormsby, 7 Dana (Ky.) 277; Harlow v. Marquette, H. & O.R. Co., 41 Mich. 336, 2 N.W. 48; Cairo & F.R. Co. v. Turner, 31 Ark. 494, 25 Am. Rep. 564; Pettibone v. La Crosse & M.R. Co., 14 Wis. 443; Chicago & A.R. Co. v. Goodwin, 111 Ill. 282, 53 Am. Rep. 622." And we have in the case of Donohoe v. El Paso & S.W.R. Co., 11 Ariz. 293, 94 P. 1091, expressly approved of such holding.
Nor do appellants deny that under the findings of the jury and the facts in this case they are estopped from maintaining either trespass or ejectment. Their contention is that they are not, however, barred from maintaining an action for use and occupation of the premises. We think that under the opinion of the court in the Roberts case they are as much barred from such an action as they are from the one for damages. In that case the court said: "It is well settled that where a railroad company, having the power of eminent domain, has entered into actual possession of land necessary for its corporate purposes, whether with or without the consent of the owner of such lands, a subsequent vendee of the latter takes the land subject to the burthen of the railroad; and the right to payment from the railroad company [39 Ariz. 159] if it entered by virtue of an agreement to pay, or to damages if the entry was unauthorized, belongs to the owner at the time the railroad company took possession. . . . " (Italics ours.) And the conclusion established by the decisions is there said to be that the damages belong to the owner at the time of the taking and do not pass to a grantee of the land under a deed made subsequent to that time, unless expressly conveyed therein.
Since the right of damages is personal to the owner, and does not pass with a deed, to allow a purchaser to collect rent would be to allow two recoveries for the same act. Further, as is said in the Roberts case, since the subsequent vendee of the owner takes the land subject to the burden of the railroad, he is presumed to know the entire situation, and can claim no compensation of any ...