Walker v. Chicago, Rock Island & Pacific Railroad

WagNer, Judge,

delivered the opinion of tbe court.

This was an action of ejectment brought by tbe plaintiff in Daviess County, to recover a strip of land on which the defendant’s railway was constructed; and thence taken, by change of venue, to Clinton County.

The answer sets up that defendants entered upon said land and constructed their road with the leave, license, con sent and acquiescence of the plaintiff. The replication denies the averments contained in the answer. Judgment for plaintiff.

The testimony shows that the plaintiff whose land was taken and used, was not present at the time; that when the railroad was being built, a gentleman wrote to him that the company had commenced constructing their road on his land, but that he did not answer the letter until some months after-wards, and then gave instructions to have .this suit in ejectment brought.

The plaintiff was not bound to be present either by himself or agent, and actively object to any trespass on his land by an intruder, in order to preserve and protect his rights. The mere information communicated to him in writing, and his paving no attention to it, cannot be tortured into an acquiescence, consent or license for the company to proceed.

*276 As well might it be said that if a man was advised that another was cutting timber on his land, and he made no answer, that his silence would be a license to the trespasser to appropriate the property. The company did not proceed in any lawful maimer to obtain the right of way. By no act of the plaintiff were they misled. He gave no assent. He did nothing from which an acquiescence, either express or implied, could be inferred. The company proceeded in their own wrong, and they cannot escape the consequences.

There can be no question that where a company proceed to build their road upon land to which they have not acquired the requisite title, either by condemnation under the statute, or by conveyance from the owner, or by some permission which gave them authority for tlieir actions, they will be liable to be ousted by ejectment.

The facts in this case entirely distinguish it from Provolt vs. The Chicago, R. I. & Pacific Railway decided at this term. (finte p. 256.)

I think the judgment should be affirmed;

the other judges concur, except Judge Sherwood, vdio is absent.