Withers v. Kansas City Suburban Belt Railroad Company

Citation126 S.W. 432,226 Mo. 373
PartiesCARA LEE WITHERS et al., Appellants, v. KANSAS CITY SUBURBAN BELT RAILROAD COMPANY et al
Decision Date15 March 1910
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed.

Scarritt Scarritt & Jones for appellants.

(1) The trial court erred in trying and determining the whole controversy defined by the pleadings, without the aid of a jury. (a) This action as outlined in the plaintiffs' petition is one to recover money. The defendants pleaded as defenses to that action the Statute of Limitations, the assertion that the land in question was not accretions to plaintiffs' shore land, that defendants owned the fee simple title, and estoppel. These issues were properly triable to a jury under the Constitution and laws of Missouri. The trial court actually tried and determined these issues. The decree finds that the allegations of the counterclaim are true; that "neither the plaintiffs, nor any of them had, at the beginning of this suit, and the said plaintiffs have not now, nor has any of them any estate right, title or interest whatsoever in and to the said land." It was error, we assert, for the court in the absence of a jury and against the protest of the plaintiffs to try and determine these issues. R. S. 1899, secs. 691 and 694; Kabrich v. Insurance Co., 48 Mo.App. 397; Henderson v. Dickey, 50 Mo. 165; Wolff v Schaeffer, 4 Mo.App. 372, and 74 Mo. 158; Carter v. Prior, 78 Mo. 224; Booth v. Lay, 83 Mo.App. 606; Grayson v. Weddle, 80 Mo. 39; Crowe v. Peters, 63 Mo. 429; Jones v. Moore, 42 Mo. 420; McReynolds v. Railroad, 34 Mo.App. 581; Estes v. Fry, 94 Mo. 271; Kerstner v. Forweg, 130 Mo. 196; Anglo-American Co. v. Lombard, 132 F. 733; Ming v. Olster, 195 Mo. 460; Thompson v. Bank, 132 Mo.App. 225; Lee v. Conran, 213 Mo. 404. The cases relied upon by defendants are distinguishable from the foregoing by the fact that the equitable defenses in those cases cut from under the plaintiffs the ground upon which the plaintiffs based their right of recovery. It must be borne in mind that the defendants in their answer unequivocally assert that they have a fee simple title to the land in question. The eighth count of the answer, called a counterclaim, nowhere avers that the defendants' legal title to the land in question is defective, but reiterates the claim that they are the owners of the legal title to the land. It charges "that all the right, title, interest and estate of persons and corporations really having any rights in or title to said property were acquired by this defendant." Therefore, under the allegations of the so-called counterclaim, no relief is necessary in respect to the establishment of the legal title in the defendants. They say they already have it. Allen v. Logan, 96 Mo. 591; O'Day v. Cohn, 131 Mo. 321; McCullom v. Broughton, 132 Mo. 601; Swon v. Stevens, 143 Mo. 384. (b) This suit has for its object the assessment of the value of the land being appropriated for public use and the recovery of the amount so determined. The railroad company by appropriating private land to its use for railroad purposes cannot, by its failure to institute condemnation proceedings, deprive the owner of those underlying rights guaranteed him by the State Constitution respecting such a contest. Constitution, art. 12, sec. 4; Railroad v. Railroad, 118 Mo. 599; Pitkinn v. Shacklett, 106 Mo. 557. (c) The counterclaim recites the allegations of fact contained in the first seven counts of the answer proper, and does not state a cause of action of which equity alone can take cognizance. The question of estoppel in pais may be tried by a jury with the same facility as any other question of fact. Pitman v. Mining Company, 78 Mo.App. 438; Gunn v. Bates, 6 Cal. 263; Maxwell v. Bridge Co., 41 Mich. 453; Daley v. Wingert, 210 Pa. St. 169; Ming v. Ostler, supra. (2) The proof wholly fails to establish facts constituting an equitable cause of action as distinguished from a law action, and therefore the court erred in entertaining jurisdiction of the case as an equity cause and in trying it without the aid of a jury. If a cause of action enforceable only in equitable jurisdiction has been asserted in the so-called counterclaim, the sole issue which was presented and which should have been determined by the trial court, without a jury, was not primarily and essentially whether the plaintiffs or defendants owned the land in question, but it was a restricted issue as to whether or not the defendants owned the land by virtue of an equitable claim or right which could not have been by reason of the strict rules and practice of the law courts established as a defense to the cause of action set out in plaintiffs' petition. In other words, the sole question is this: Was the conduct of plaintiffs such that, although they are the owners of the land in controversy by reason of its being accretion to their shore land, equity will not, because of their conduct, permit them to assert that ownership? Upon this record the unquestioned fact is that plaintiffs had no knowledge or notice that the defendants or any other purchasers of title were buying, or intended to buy, any rights in the land in question from others than themselves. The external evidence that the land was an accretion to the shore land was plain anl palpable and was as well known to the defendants as to the plaintiffs. The defendants, before they dealt with the land, had notice that it was accretion and their own records show that they so regarded it. There is no evidence that the land was less valuable before it arose above the water level at the ordinary stage of the Missouri River than after it was filled in ten or twelve feet; that filling occurred mostly from general and promiscuous dumping. All such dumping was gratuitious, or at least there is no evidence that it cost anybody anything. In Kansas City, as is generally known, it is argued that lowlying lands have an additional value because the owners of hills will pay for the privilege of depositing their excess earth there. There is no suggestion in the record that the defendants would not have done what they did do if the plaintiffs had served notice upon them every day of their rights in and to this land. The mere fact that the defendants and their emissaries were getting all sorts of deeds from persons whose title had been washed out by the navigable waters of the Missouri river, deeds from extinct corporations, deeds from the county, deeds from the city, all of which were based on inconsistent theories, shows beyond cavil that the defendants were not deceived or misled by any conduct or silence of the plaintiffs, but were doing their utmost to subvert and override the rights of the plaintiffs. Lee v. Conran, 213 Mo. 404; R. S. 1855, chap. 158, secs. 1, 8; 11 Am. and Eng. Ency. Law (2 Ed.), p. 432; Bank v. Duncan, 86 N.Y. 221; Bartless v. Kauder, 97 Mo. 361; Cantwell v. Crawley, 188 Mo. 44; Weir v. Lumber Co., 186 Mo. 396. The silence and inaction which create an estoppel occur under such circumstances and are committed by a person sustaining such relation to the other that the person seeking to enforce the estoppel would reasonably presume such silence and inaction to be a positive representation on the part of the other of the truth of the fact of which the contrary is sought to be asserted. Pomeroy, Eq. Jur., sec. 805; Brant v. Virginia Co., 93 U.S. 326; Bloomfield v. Bank, 121 U.S. 121; Bigelow on Estoppel (4 Ed.), p. 445; Gray v. Gray, 83 Mo. 106; Yates v. Hurd, 8 Col. 343; Delaplaine v. Hitchcock, 6 Hill 14; Herman on Estoppel, sec. 948; Commonwealth v. Moltz, 10 Pa. St. 527; Brewer v. Railroad, 5 Met. 479; Boggs v. Merced Co., 14 Cal. 279; Crary v. Dye, 208 U.S. 515; Water Co. v. Verdugo, 152 Cal. 655; Ditch Co. v. Canal Co., 27 Col. 267; Piedmont Mills v. Railroad, 131 Ga. 129; Bales v. Perry, 51 Mo. 449; Blodgett v. Perry, 97 Mo. 263; Hequembourg v. Edwards, 155 Mo. 522.

S. W. Moore, Cyrus Crane and R. E. Ball for respondents.

(1) There was no error in transferring the cause to the equity side of the docket. Freeman v. Wilkerson, 50 Mo 556; Estes v. Fry, 94 Mo. 271; Allen v. Logan, 96 Mo. 598; Clyburn v. McLaughlin, 106 Mo. 524; O'Day v. Conn., 131 Mo. 325; Swon v. Stevens, 143 Mo. 392; Dunn v. McCoy, 150 Mo. 561; Martin v. Turnbaugh, 153 Mo. 185; Wilson v. Jackson, 167 Mo. 157; Myers v. Schuchman, 182 Mo. 171; Wendover v. Baker, 121 Mo. 289; Trust Co. v. Nathan, 175 Mo. 41; Courtney v. Blackwell, 150 Mo. 278; McCollum v. Broughton, 132 Mo. 620; Shaffer v. Detie, 191 Mo. 388; Bouton v. Pippin, 192 Mo. 359; Pitts v. Pitts, 201 Mo. 359; Hubbard v. Slavens, 218 Mo. 619; Guffey v. O'Reiley, 88 Mo. 430. (2) The evidence fully sustained the equitable defenses and warranted the court in granting the equitable relief prayed for -- the case was a proper one for the jurisdiction of a court of equity. Defendants were charged with notice. Shaffer v. Detie, 191 Mo. 393. Equitable estoppel. 1 Story Eq. Jur., secs. 385, 387; Wendell v. Rensselaer, 1 Johns. Ch. 344; Storrs v. Barker, 6 Johns. Ch. 166; Guffey v. O'Reiley, 88 Mo. 424; McDonald v. Association, 175 Mo. 276; Rice v. Bunce, 49 Mo. 235; Spence v. Renfro, 179 Mo. 422; Godeffrey v. Caldwell, 2 Cal. 489. Laches. 18 Am. and Eng. Ency. Law, p. 103; Galliher v. Cadwell, 145 U.S. 373; Dunklin Co. v. Chouteau, 120 Mo. 596; Simpson v. Stoddard Co., 173 Mo. 469. Relief is asked under section 650 by pleadings which make the issues triable before a chancellor. Wehrman v. Conklin, 155 U.S. 314; Wilson v. Lubke, 176 Mo. 210; Mason v. Perkins, 180 Mo. 702; Lee v. Conran, 213 Mo. 411. Other relief may be asked in a cross-bill in addition to that given by section 650. Garrison v. Frazier, 165 Mo. 46; Lane v. Dowd, 172 Mo. 167; ...

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