Southern California Railroad v. Slauson

McFARLAND, J. This is an action to quiet title. It is averred in the first count of the complaint that plaintiff is the owner and in possession of a described strip of land between thirty and forty feet Mide and about thirteen hundred feet in length, and that defendant claims some title or interest therein which is without right; and the prayer is that it be decreed that plaintiff is the owner in fee simple of said land, and that its title thereto be quieted as against defendant. In a second count it is averred that for more than five years plaintiff and its predecessors in interest have been in the exclusive possession of a right of way over said land for the use and purpose of operating a railroad over the same, claiming to be the owner of said right of way adversely to any right, title, claim, etc., of defendant; and the prayer in this count is that the plaintiff’s title to such right of way be quieted, etc., as against defendant. Thq judgment of the court below was in favor of defendant, and plaintiff appeals from an order denying its motion for a new trial. It also attempted to appeal from the judgment, but, as the notice of such appeal was not within the statutory time, the appeal from the judgment is dismissed. There are therefore before this court only such questions as can be considered on the appeal from the order denying a new trial. ''

The only title asserted by appellant is one based on prescription—appellant claiming that it had been in the adverse possession of the premises for more than five years before the commencement of the action. The court found against this asserted title by prescription, and the evidence was sufficient [876]to support the findings. During all the time mentioned in the complaint the respondent was the owner in fee of a tract of land which included the premises here in contest. There was evidence that when the predecessor of appellant—the Los Angeles and Santa Monica Railroad Company—contemplated building a road across the land, the person whom it authorized to obtain rights of way, etc., for such contemplated road had an interview with respondent, at which the latter agreed that the railroad company might go on and build the road over his said land, provided it would put a good depot on it, at which all passenger trains would stop; and that when that was done he' would make a deed conveying the right of way. This evidence was clearly admissible, although there was no written contract to show that the railroad company entered upon the land by respondent’s permission, and not hostilely. The result of the interview was reported to the company, and soon thereafter it began to build the road over the land, and,' having completed it, it ran its trains over it. It continued to operate the road, but did not build the depot, nor stop its trains on respondent’s land. It made no demand for a deed conveying the right of way, nor did respondent make a demand for the construction of the depot, until after five years had elapsed, when the present action was commenced by appellant. The court correctly found that appellant had no title. The railroad company having gone into possession under respondent’s permission, and in consonance with the latter ’s title, which it was not to have until it should have performed the conditions named, the statute of limitations would not commence to run until the company had in some open way repudiated that title. This is elementary law, and we will simply refer to some authorities cited in respondent’s brief: Farish v. Coon, 40 Cal. 33; Mauldin v. Cox, 67 Cal. 387, 7 Pac. 804; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; Kirk v. Smith, 9 Wheat. 288, 6 L. Ed. 81; Wood, Lim., sec. 260.