Chicago, Milwaukee & St. Paul Railway Co. v. Snyder

Sherwin, J.

There is nothing in the defendants’ counterclaim. If an additional servitude has been imposed on *534 defendants’ land, it is clear that they have no right to an i. right of ■ Son! right's • cree. accounting of the rents and profits received by the plaintiff from the telegraph company. The appellants claimed, and introduced testimony tending to support the claim, that when the dam'ages were originally assessed, and when the stipulated decree was rendered in the federal court, the injury to the dooryard was expressly excluded from consideration because of the promise made by the plaintiff’s agent and attorney that it would never molest or disturb the owners, use thereof; and it is contended that, because of the alleged agreement and understanding, the defendants and their grantors held adversely td the plaintiff undér a claim of right, and acquired title thereby to the land in question. The defendants and their grantors have always owned the fee title of the entire right of way, and the ■plaintiff’s interest therein has been an easement only. If the defendants’ grantors had conveyed this easement by deed, describing and defining it as was done in the decree, their continued possession of the dooryard for yard purposes, the same as it had theretofore been used, would not set the statute, of limitations in motion, for, if the grantor continues in possession after conveyance, he will be regarded as holding in subserviency to the grantee, either as his tenant or trustee, “and nothing short of an explicit disclaimer .of the relation, and a notorious assertion of right in himself, will be sufficient to change the character of his possession, and render it adverse to. the grantee.” 1 Oyc. 1039. The stipulated decree had all of the force and effect that a direct conveyance could have had, and the owner’s continued possession of the land thereafter could by no possibility place him in a better position than he would have been in, had he executed and delivered a deed to the plaintiff. While the plaintiff was entitled to the possession and control of its right of way whenever it should deem it necessary to use it in the conduct of its *535 business, it cannot be said, as a matter of law, that it might not consent to any use thereof which would not interfere with its duties to the public, and we find nothing in the record indicating that the possession or use of the yard by the defendants’ grantors was in any way inconsistent with the plaintiff’s right of possession or its necessities during the time in question. Slocumb v. The C. B. & Q. R. Co., 57 Iowa, 675 .

Nor can the fact that before the final decree there was a promise not to disturb the owner’s use of the yard change the rule above announced. The decree settled the 2. right of termination of prior agreements, parties’ rights thereto, and clearly defined what they were, and all prior agreements were merged therein. The plaintiff had the right to rely fully thereon, and to presume that the owner’s continued possession of the land was subservient to the easement created thereby. When the defendants bought, they were told that the yard was reserved from the right of way grant, and they continued in the possession and use thereof just as had their grantor. There was no change in the physical conditions, and no outward sign that they were' making a greater claim thereto than he had made. Nor did the plaintiff have knowledge of the representations made to the appellants by their grantor. It then had the right to presume that the defendants’ possession was subservient to its estate, as had been their grantor’s; and unless there was. some other unequivocal act.on the part of the defendants, brought home to the knowledge of the plaintiff, indicating a hostile intent, their possession was not adverse. We find nothing of this kind in the record. Slocumb v. The C. B. & Q. R. Co., supra. ' True, there was no reservation of the right of way iffthe defendants’ deed, as was-the case in Slocumb v. R. Co. but we are unable to see how this can affect the result, for, conceding that the defendants were holding under a good-faith claim of right or title, they have failed to provethat *536 their possession was adverse to or inconsistent with the plaintiff’s right to the land whenever it became necessary for the proper convenience and use of its business.

This is so largely a fact case that we do not deem it necessary to review the cases cited in support of the contention of counsel. The judgment is aefirmed.