Brown v. Chicago, B. & K. C. Ry. Co.

• Decision Date: 17 November 1890
• Citation: 14 S.W. 719,101 Mo. 484
• Court: Missouri Supreme Court
• Parties: BROWN v. CHICAGO, B. & K. C. RY. CO.

14 S.W. 719

101 Mo. 484

BROWN v. CHICAGO, B. & K. C. RY. CO.

Supreme Court of Missouri.

November 17, 1890.

ADVERSE POSSESSION — RAILROAD RIGHT OF WAY.

1. Where a railroad company, after condemning a right of way and grading its road-bed, abandons the work, and exercises no acts of ownership for over 10 years, the question whether an adjoining land-owner acquired title to such right of way by adverse possession depends on whether he took exclusive possession, claiming it as his own, and whether he and his grantees so held it continuously for a period of 10 years thereafter, and before the railroad company again began to exercise control over it.

2. In an action by a remote grantee of the original owner for the strip of land occupied by the right of way, testimony by such owner that he used parts of the right of way for agricultural purposes while the railroad company was grading the road-bed does not warrant an instruction which assumes that such owner had exclusive adverse possession of the right of way while the grading was being done. The company being rightfully in possession of the entire strip under the condemnation proceedings, the land-owner's possession of part thereof was either that of a trespasser or of a licensee of the railroad company.

3. An instruction which bases plaintiff's right of recovery wholly on his ownership of the entire tract through which the right of way runs, without regard to the respective rights of the parties to such right of way, is misleading.

4. Where plaintiff's immediate grantor testifies that he at no time claimed title to the land, the time the land was owned by said grantor should be omitted from the computation of the time; and, as plaintiff himself had been in possession of the land for only two years, the predecessors of his immediate grantor must have had adverse possession for 10 years to enable plaintiff to recover.

Appeal from circuit court, Linn county.

H. Lander and B. J. Northcott, for appellant. A. W. Mullins and O. L. Houts, for respondent.

BRACE, J.

In this action the plaintiff seeks to recover damages from the defendant for wrongfully entering upon the N. ½ of the N. W. ¼ of section 8, township 57, range 20, in said county, and appropriating a strip of land 100 feet wide through said tract for the purposes of its railroad, and offers to convey said strip to the defendant upon the payment of said damages, and a reasonable compensation therefor. The answer sets up ownership by the defendant of the 100-feet strip, by virtue of a condemnation proceeding commenced March 11, 1870, and concluded April 11, 1870, by the Missouri Central Railroad Company against one Milton Lamme. It is conceded that, at the time these proceedings were instituted, Lamme was the owner in fee-simple of said 80-acre tract of land, and that the plaintiff by mesne conveyances has acquired his title thereto. It is also conceded that the said Missouri Central Railroad Company, by virtue of the condemnation proceedings aforesaid, obtained Lamme's title to the 100-feet strip across said tract for a right of way for its railroad, and that the defendant, by mesne conveyances, has acquired all the right, title, and interest of said railroad company thereto. In the summer of 1870, under the right acquired by said condemnation proceedings, the Missouri Central Railroad Company entered upon said strip, and graded a road-bed on it. This work ceased during that summer, and, thereafter, neither said railroad company nor any of its grantees did any work upon or exercised any acts of ownership over said strip until the fall of 1881. In September of that year the defendant, by Elijah Smith and his employes, entered upon the right of way, and, between that time and the following December, dressed and finished the old grade, and put it in condition for the track, which was laid thereupon in the spring following; and afterwards, in the spring and summer of 1883, fenced the right of way. Pending said condemnation proceedings, and on the 1st of April, 1870, Lamme conveyed said 80-acre tract by warranty deed to James Welsh, who was in possession thereof at the time the road-bed was graded by the Missouri Central Railroad Company, in the summer of 1870, and who continued in possession thereof until some time in the year 1879. On the 5th of November, 1879, all his right, title, and interest in said tract of land was sold under a special execution upon a judgment of foreclosure of a deed of trust in favor of R. W. Mitchell, administrator of James Lamme, given by Welsh to secure the payment of the purchase money for said land to said Lamme, and J. D. Rummell became the purchaser, and received the sheriff's deed therefor. On the 4th of January, 1880, Rummell and wife conveyed the tract to Sarah C. Mitchell, wife of the said R. W. Mitchell, and on the 2d of October, 1882, Sarah C. Mitchell and husband conveyed the tract to the plaintiff. It does not appear that Rummell was ever in actual possession of the tract. The evidence tends to prove that R. W. Mitchell, in right of his wife, succeeded Welsh in the possession some time in the latter part of the year 1879, and continued in possession until the sale to plaintiff, which took place about the 1st of April, 1882, at which time the tract was in the actual possession of one Alban, as tenant of Mitchell, and, by the terms of the contract between plaintiff and Mitchell, the latter was permitted to remain in possession until the crop of that season was matured and taken off. In October, 1882, the plaintiff received his deed from Mitchell, having complied with the terms of his contract, and entered into possession of the tract, and afterwards, on the 5th of April, 1886, commenced this action. The controlling question in the case on the evidence under the pleadings was whether the plaintiff and his grantors, by continuous adverse possession, had acquired legal title to the right of way of 100 feet across said 80-acre tract, vested in the defendant by virtue of said condemnation proceedings, and the mesne conveyances from said Missouri Central Railroad Company. The case was tried in the circuit court before a jury, and the question of fact submitted upon instructions, of which those given for the plaintiff the defendant complains, and a verdict returned in favor of the plaintiff, and his damages assessed at the sum of $250, upon which judgment was rendered, and the defendant appeals. The defendant also complains of the action of the court in refusing an instruction asked upon the question of adverse possession.

The instructions given for the plaintiff upon the question of adverse possession are as follows: "(1) The court instructs the jury that if they find from the evidence that the plaintiff herein was the owner and in actual possession of the premises described in the petition, and that, while he so owned and possessed the same, the defendant by its servants and employes entered into and upon such premises, without the consent and against the will of plaintiff, and built and constructed the railroad through said premises, and that defendant has since maintained, run, and operated said railroad, and has fenced up and appropriated to its own use a strip of land one hundred feet wide, then the finding should be for the plaintiff for the amount of the damages so sustained by him as shown in the evidence, in all not to exceed one thousand dollars. (2) The court instructs the jury that, if they believe from the evidence that James M. Welsh, the grantee of Milton Lamme, and those claiming under him, continued in the actual possession of the strip of land sought to be condemned for a right of way for the railroad, after the proceedings were had for that purpose in the year 1870, and did not surrender the possession of the said strip of land through said premises to the railroad company, but held and continued the actual possession thereof continuously after the grading was done for themselves, as against the railroad company, for a period of ten years or more, before the defendant took possession of said strip of land and built its road thereon, and that said defendant by its agents and employees took possession without the consent and against the will of the owner, then the jury should find for the plaintiff. (3) The court further instructs the jury that, although they may find from the evidence that in the month of September, 1881, the defendant caused some work to be done on the road within the premises described in the pleadings, and afterwards, in the year 1882, laid its railway track over the same, then plaintiff's right of action, if a right of action existed in his favor under the...