Fresno Etc. Co. v. Southern Pac. Etc. Co.

This is an action of ejectment, brought to recover a portion of the right of way claimed by the plaintiff, lying upon Tulare Avenue, a highway in Fresno County. Verdict and judgment went for the plaintiff in the court below, and this appeal is from the judgment and from an order denying defendants' motion for a new trial. The appellants make two points on the appeal: 1. That the action of ejectment is not maintainable for the sort of injury *Page 203 here involved; and 2. That the action of ejectment could not be maintained in this case because of the consent or acquiescence of respondent in the construction of the San Joaquin Valley road, the predecessor in interest of defendants and appellants, over a portion of the right of way in question.

It is not questioned on the part of the appellants that there is a class of cases wherein an action will lie for the recovery of a right of way, but it is claimed that in all such cases there is an exclusive right of possession in the body politic, corporation, or person seeking to enforce such a remedy; as, for instance, a city or other municipal body may maintain ejectment for the recovery of a street or park, and a county, to recover a public road or highway. Such were the cases of Visalia v. Jacob,65 Cal. 434,1 and San Francisco v. Grote, 120 Cal. 59.2 It has also been held that ejectment would lie to recover possession of the right of way, or any portion thereof, granted by Congress to the Central Pacific Railroad Company. (See Southern Pacific Co.v. Burr, 86 Cal. 279, and Southern Pacific Co. v. Hyatt, 132 Cal. 240. ) The streets and parks in such cases belong to the public, and the public is entitled to the exclusive possession and use of the same, and the municipality or county, as the case may be, is simply the agent of the public, and hence is entitled to bring an action to recover possession, in case the public has been ousted of the same. So in reference to the Congressional grant of right of way to the Pacific Railroad Company; the grant in that case conveys exclusive right of possession to all within the boundaries of the grant, for the purposes of constructing and operating the railroad in question. In this case, however, it appears, by the admitted facts, that the plaintiff's right is based upon a franchise, granted by the board of supervisors of the county of Fresno, to operate and maintain a railroad along and over Tulare Avenue, and that said avenue is a public highway, in the county of Fresno.

In San Francisco v. Grote, 120 Cal. 592, the court says: "It may be conceded that a naked right of way, an easement in its simplest form, a mere right to pass over the lands of another, is a thing so intangible and unsubstantial as to be insufficient to support an action of ejectment. But *Page 204 here the right of the city goes far beyond that. The city has the right of the exclusive possession, a right to disturb the soil, a right to grade and otherwise improve the street in many ways. In other words, more than a mere right to the use of a street passes to the public by dedication; in addition to the right of the use, there passes such an interest in the land as is necessary for the enjoyment of that use by the public." And inWood v. Truckee Turnpike Co., 24 Cal. 474, the court says: "But it is well settled that an action of ejectment will not lie in favor of a party to try his right to enjoy an easement; nor will it lie against one claiming an easement in land to try his right to enjoy it. And the reason is obvious — the very subject-matter of controversy is incorporeal. It is for that reason that an easement `lyeth in grant, and not in livery.' It is for that reason that the owner of a way cannot be disseised, or otherwise ousted of it; he can only be `disturbed' or `obstructed' in its enjoyment, and for such injury the remedy is by action on the case at common law, or by bill in equity." (Citing a long list of authorities.) In City of Racine v. Crotsenberg, 61 Wis. 481,1 it is said: "No one will contend that an action of ejectment will lie to recover a simple right of way. Such an easement is incorporeal in its nature, and ejectment lies only to recover things corporeal which may be the subjects of seisin, entry, and possession. There can be no seisin of an incorporeal hereditament, and it cannot be the subject of entry or possession. It `lyeth in grant and not in livery.'" The same rule was held in Fritsche v. Fritsche, 77 Wis. 270, where it is said: "It is well settled, both on principle and by authority, that the action cannot be maintained for such purpose." That was ejectment, also, to recover a private right of way claimed by the plaintiff as against the defendant, who had obstructed the same at some point. The right to a fee and the right to an easement in the same estate are rights independent of each other, and may subsist together when vested in different persons. Each can maintain an action to vindicate and establish his right. The owner of the fee is the one entitled to the exclusive possession, and may protect and enforce his right by ejectment; but for the disturbance or obstruction of an easement or franchise, ejectment *Page 205 is not the proper remedy. In addition to the cases quoted, see, further, Child v. Chappell, 9 N.Y. 246; Washburn on Easements, 568; Taylor v. Gladwin, 40 Mich. 232; Smith v. Wiggin,48 N.H. 105; 2 Bacon's Abridgments, 417; Adams on Ejectment, 16; Runnington on Ejectment, 25.