Harvey v. Missouri Pacific Railroad

Citations

• 111 Kan. 371
• 207 P. 761
• 50 A.L.R. 300
• 1922 Kan. LEXIS 251

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Quieting Title — Unused Portion of Railroad Right of Way — Right of Holder of Legal Title to Possession. The holder of the fee title to land taken under condemnation proceedings for railway purposes remains the owner of the property, and has the right to occupy and use such portion of the condemned property as the railway company does not actually require or use for the proper, safe, convenient and efficient discharge of its duties as a public carrier; but such occupancy and use are neither adverse, hostile, nor inconsistent with the rights of the railway company, nor will the lapse of time bar the railway company of its rights acquired and paid for under the condemnation proceedings.</p> <p>2. Same — Possession of Unused Portion of Right of Way — Possession Not Adverse to Railroad Company. Certain lands of plaintiff’s predecessor in title were condemned in 1879 for railway purposes. Hitherto the defendant company has not used or needed all the land condemned, and a portion of of it has been continually occupied and used by the plaintiff and his predecessors in title. Held, that as plaintiff and his predecessors in title were strictly within their rights in occupying and using that portion of the property not yet required for railway purposes, there has been no adverse, hostile, inconsistent use to the prejudice of the railway company, nor has the latter been excluded so as to give rise to an independent right founded on fifteen years’ adverse possession; and an action on the part of the fee title holder to quiet his title against the railway company cannot be maintained.</p>