OHME et al. v. CLEVELAND, C., C. & ST. L. RY. CO., 239 F. 808

MACK, Circuit Judge (after stating the facts as above). The bill was not subject to demurrer or motion to dismiss. On its face it set out a good cause of action. The main controversy is whether the essential averments of possession and title have been proven. Plaintiff offered no evidence whatsoever as to the possession of the premises at the date of the commencement of its suit in 1913.

It relied apparently upon the contention that the property conveyed to it by Noyes in 1855 became a part of and extended the boundaries of the railroad right of way; that the lease of 1859, read in the light of this extended right of way, must be deemed tq have included all of the land on which the hotel building was to stand and so much of the adjoining open space appurtenant thereto as was owned by the lessors, and that, because defendants claimed title through a deed made by Noyes, the original lessee, during the pendency of the lease, they were estopped to deny plaintiff’s title or possession. ' It is entirely unnecessary to consider the extent of a tenant’s estoppel, inasmuch as we cannot concur in this

interpretation of the lease of 1859. The description of the premises thereby let is clear and certain. There is no ambiguity of any kind. Only the south line of the Terre Haute, Alton & St. Louis Railroad’s right of way as originally established runs parallel to the center line and in a southwesterly direction. The south line of the property described in the 1855 deed runs due east and west.

That the railroad, in 1855, had acquired title to the strip now in question, adjoining its right of way on the south, and that the hotel was located on both the strip and the right of way, furnish no sufficient reason to construe the clear and unambiguous language of the lease, so as to include therein either this entire strip outside of the original right of way or even so much thereof as was covered by the hotel building.

The failure to include this strip in the lease may have been due to the acquiescence of the railroad in Noyes’ view, as testified to by him in 1870, in the course of the proceedings above referred to, namely, that he had deeded this north part of block 116 to the railroad for a freight house, and as this had been removed before he agreed, in 1856, to convey the block to Radcliffe, the title thereto had reverted to him. But it is idle to speculate on the reasons which influenced the parties to exclude the strip from the lease.

It suffices that plaintiff has failed to prove that Noyes was its lessee as to the property in suit, or that it was in possession thereof in 1913. The evidence however, goes further ; it demonstrates that neither in 1859 nor at any time thereafter, prior to 1910, did the railroad in any manner whatsoever assert any right in and to the strip. Even in 1899, when, on the expiration of the lease, it demanded possession, and in 1900, when it executed a new lease for a nominal consideration, terminable on 30 days’ notice, it adopted the same description of the premises as in 1859.

Its own official annual schedules of. property in Coles county and its maps fail to include this strip as part of its right of way or property.- Indeed, the description of the right of way as 100 feet wide necessarily excludes it as part thereof. Concededly a tenant is not estopped from contesting his landlord’s title to property adjoining the leased premises, or from acquiring title thereto by adverse possession.

Whatever may be said of the earlier deeds in defendants’ chain of title, at least as early as the deed from Moulton to Messer, in 1880, this distinction between the leasehold interest in the right of way and the fee simple in the strip in question is clearly stated. Erom that time on, if not before, as the evidence abundantly proves, defendants and those under whom they claim not only had actual, notorious, exclusive, and continuous possession, but they held it adversely to the plaintiff, under an express claim and color of title.

The lessee under the 1900 lease and his assignee testify that they were also the lessees of Messer as to the strip in question, and that, while paying rental to the railroad for so much of the hotel property as is located on the right of way described in the lease, they also paid rental to Messer and his grantees for the use of the property here in question.

Within two or three years before this suit was brought a portion of the building located on the strip in question was, however, for the first time used by the plaintiff railroad; at that time, the west part of the building, marked on the Shinn map “Baggage Room,” was rebuilt as there shown, extending beyond the right of way onto block 116. Except as to this part, the record fails clearly to disclose who was in the actual possession of the hotel building at the time this suit was brought. The last assignment of the 1900 lease testified to was made in 1910.

The assignee therein was not a witness, and it does not appear whether or not he ever held that part of the hotel building that was on block 116 as defendants’ tenant, or whether he continued, in possession of any of the property. The evidence does, however, prove .that the land between the hotel building and'the lots in that block was in the actual possession of defendants.

As plaintiff, therefore, has not only failed to prove its actual possession of the property in question at the time it began these proceedings, but is also barred by laches and limitations from asserting as against these defendants any title under the 1855 deed, the decree must be reversed, and the cause remanded, with directions to dismiss the bill for want of equity. And, as defendants concede that under these circumstances no relief can be granted on the answers ais cross-bills,, they, too, will be directed to be dismissed, but without prejudice.

And it is so ordered. <§=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes