State v. Cape Girardeau & Jackson Gravel Road Co.

Decision Date06 November 1907
PartiesSTATE ex rel. HINES v. CAPE GIRARDEAU & JACKSON GRAVEL ROAD CO.
CourtMissouri Supreme Court

Act Feb. 28, 1851 (Laws 1850-51, p. 132), incorporating a toll road company, authorized it to receive land for a right of way by gift, purchase, or otherwise, and also to take land acquired by condemnation proceedings, and that the judgment should vest in the corporation "a fee-simple title" to the strip condemned. It also authorized the corporation to own land in fee simple for the purpose of procuring materials for the use of the road and for the erection of toll houses, which land it was authorized to sell in the manner prescribed by law, and exempted the corporation from Act March 19, 1845 (Rev. St. 1845, c. 34) art. 1, § 7, providing that the charter of every corporation granted by the Legislature should be subject to alteration, suspension, and repeal, in the Legislature's discretion. Held, that the term "fee simple," as used with reference to the right of way, did not contemplate that the corporation should own such toll road in fee, and that it only acquired an easement over the same during the term of its corporate existence.

5. SAME — PERPETUAL EXISTENCE.

Where a toll road corporation only acquired an easement in its right of way for the term of its corporate existence, a charter provision, that a judgment condemning land for such right of way should vest in the company a fee-simple title to the strip so condemned, did not indicate a legislative intent to create a perpetual corporation.

6. SAME — PUBLIC EASEMENT — ADVERSE POSSESSION — EXCLUSIVENESS.

Where the charter of a toll road company created an easement in the public in the use of the road from the date of its construction, and the public continuously availed itself of such easement, subject only to the easement granted to the corporation to take specified tolls, neither the possession of the original corporation, nor that of its successor, was exclusive as against the public, so as to divest the latter of its rights, by adverse possession.

7. SAME — LACHES.

While the doctrine of laches is applicable to a county or other municipal corporation, as well as to individuals, it is not applicable to bar the public's rights in a toll road which it has continuously used as a public highway from 1851, subject only to the payment of tolls during the corporate existence of the corporation operating the road.

8. SAME — ESTOPPEL.

Where a toll road was continuously used by the public from its construction in 1851, subject to the right of the corporation operating the road to collect tolls during its corporate existence, the public was not estopped to assert its continuing right to use the road by the fact that the county court had sold its stock in the road company.

9. SAME — TERMINATION OF CHARTER — EFFECT — CONVEYANCE.

Where the corporate existence of a toll road company terminated on February 28, 1871, by expiration of time, the road and franchise of the corporation thereupon vested in the public, so that an alleged deed thereof by the directors of the defunct corporation in 1882 to defendant conveyed no title.

In Banc. Appeal from Circuit Court, St. Francois County; Robert A. Anthony, Judge.

Suit by the state, on relation of T. D. Hines, against the Cape Girardeau & Jackson Gravel Road Company. From a decree for plaintiff, defendant appeals. Affirmed.

W. H. Miller and Oliver & Oliver, for appellant. T. D. Hines, Robert L. Wilson, and M. A. Dempsey, for respondent.

PER CURIAM.

Upon a rehearing of this cause before the court in banc, the subjoined opinion of GANTT, C. J., in Division No. 2 is adopted, BURGESS, VALLIANT, FOX, LAMM, GRAVES, and WOODSON, JJ., concurring therein:

GANTT, C. J.

This is an appeal from the judgment and decree of the St. Francois circuit court perpetually enjoining and restraining the defendant, its officers, agents, servants, successors, and assigns from further maintaining toll gates on a certain road or highway, designated as a free public highway beginning at the city of Cape Girardeau, running thence to Jackson, the county seat of Cape Girardeau county, and from thence to the town of Burfordville, formerly known as Bollinger's Mill.

The petition alleges that said road is now and for more than 50 years has been a public highway, and is the main thoroughfare between the city of Cape Girardeau and the towns of Jackson and Burfordville; that the defendant is a corporation organized under the laws of this state, and that without authority it maintains on said highway, at various points, certain bars and obstructions commonly known as toll gates, and that it prohibits and prevents the public from making fair and proper use of said highway; that the existence and maintenance of such toll gates obstruct free travel over said road, and constitute a continuous public nuisance, and prays that nuisance be abated and the defendant, its officers, agents, servants, successors, and assigns be perpetually enjoined from in any way further obstructing said highway and from preventing free travel thereover, and for such other and further relief as the court may deem meet.

The defendant in its answer admits that it is a corporation organized under the laws of this state, and as such is the owner in fee of all that 50-foot strip of ground upon which it has constructed its macadamized and gravel road in the county of Cape Girardeau and state of Missouri, beginning at the intersection of Pacific street and Broadway, formerly named Harmony street and called Jackson street, thence in a general northwesterly direction to and through the city of Jackson, the county seat of Cape Girardeau county, and thence in a westerly direction to the town of Burfordville formerly known as "Bollinger's Mill." Further answering, defendant says: That under the law of its incorporation it was authorized to, and in 1882 it did, acquire in fee simple all that strip of land 50 feet wide, upon which it has constructed and now has its gravel roadbed over the route above described, and that it has been in the sole and exclusive possession of the said strip of land ever since then, claiming, using, and enjoying all the rights of ownership over the same. That its deed for and to said strip of land was placed of record in 1882, but is now and has been at all times since then of record. Defendant further states: That it acquired said strip of land from the Cape Girardeau Macadamized & Plank Road Company, and that said last-named company was a corporation created by an act of the General Assembly of the state of Missouri, approved February 28, 1851, entitled "An act to incorporate the Cape Girardeau Macadamized & Plank Road Company." Laws 1850-51, p. 132. That the said Cape Girardeau Macadamized & Plank Road Company had the right under its charter to acquire by deed, gift, purchase, appropriation, or condemnation a strip of land not exceeding 100 feet in width, in fee simple, for the purpose of building a roadbed thereon, and that its charter was not subject to legislative "alteration, suspension, or repeal," but was to and did have "continued succession" with the other usual rights of bodies politic and corporate, "including the right to sell any part or all of its real estate so acquired." That said Cape Girardeau Macadamized & Plank Road Company acquired the said strip of land 50 feet wide, for a valuable consideration, by warranty deed, and placed the same of record in 1855, and that no part of said strip of land since 1855 has belonged to the public, or to the state of Missouri, or to the county of Cape Girardeau, but that it has at all times since then remained in the open, notorious, and exclusive possession and ownership of this respondent and its grantor. That the stockholders of its grantor had expended more than $75,000 in grading, macadamizing, graveling, and bridging said road, and that since the acquirement of said strip of land in 1882 it has expended more than $66,000 in the reconstruction of said road on said strip of land so as to make same conform to the law of this state. And, further answering, respondent denies each and every averment in relator's petition set out, except the admission of its corporate existence, as hereinabove pleaded, and, having fully answered, prays for judgment and costs. "And, for a further answer, respondent says that the relator in this proceeding is seeking to take and deprive it of its property and of its rights to hold, own, and enjoy property without due compensation, and in its efforts to do so the relator violated sections 4, 15, 21, 30, and 32 of article 2 of the Constitution of Missouri [Ann. St. 1906, pp. 128, 137, 148, 166, 172], and section 10, art. 1, and section 4, art. 4, of the fourteenth amendment of the Constitution of the United States, which prohibits the taking of private property without compensation therefor. And respondent now says...

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