State ex rel. State Highway Com'n v. Union Elec. Co. of Missouri

• Decision Date: 13 March 1941
• Docket Number: 37195,37196
• Citation: 148 S.W.2d 503,347 Mo. 690
• Parties: State of Missouri at the relation of State Highway Commission v. Union Electric Company of Missouri and St. Louis Union Trust Company, Trustee, Appellants
• Court: Missouri Supreme Court

148 S.W.2d 503

347 Mo. 690

State of Missouri at the relation of State Highway Commission v. Union Electric Company of Missouri and St. Louis Union Trust Company, Trustee, Appellants

Nos. 37195, 37196

Supreme Court of Missouri

March 13, 1941

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Affirmed.

Igoe, Carroll, Keefe & McAfee and J. W McAfee for appellants.

(1) The deeds from the original grantors are clear and unambiguous on their face, and extrinsic evidence cannot be used to vary their effect. Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 74; Ohlson v. Batterton, 230 S.W. 113; Gilbert v. M., K. & T. Ry. Co., 185 F. 102; 18 C. J. 261; Triplett v. Triplett, 332 Mo. 870, 60 S.W.2d 13; Eckle v. Ryland, 265 Mo. 424, 165 S.W. 1035. (a) The St. Louis Public Service Company and its predecessors were street railway companies and as such had the power to acquire fee-simple title in land by purchase. Secs. 4555, 4823, 4911, R. S. 1929; Laws 1899, p. 378; Laws 1907, p. 174; St. L. Elec. Term. Ry. Co. v. McAdaras, 257 Mo. 48, 166 S.W. 307; Coates & Hopkins Realty Co. v. Kansas City Term. Ry. Co., 328 Mo. 1118, 43 S.W.2d 822. (b) By virtue of the grant from the St. Louis Public Service Company, Union Electric Company obtained an easement without limitation as to time over the lands in question, and such easement is a property interest which cannot be taken without just compensation. Mo. Const., Art. II, Sec. 21; Mo. P. & L. Co. v. Thomas, 340 Mo. 1022, 102 S.W.2d 564; State ex inf. Chaney v. West Mo. Power Co., 313 Mo. 283, 281 S.W. 709; St. L. & S. F. Railroad v. Gordon, 157 Mo. 71, 57 S.W. 742; State ex rel. Briton v. Mulloy, 61 S.W.2d 741. (c) Possession by Union Electric Company of the transmission line easement from 1916 on was general notice to the world of its rights in the land, and it was not necessary to record the instrument granting such easement. Lee & Boutell Co. v. Brockett Cement Co., 106 S.W.2d 462; Shaffer v. Detie, 191 Mo. 393, 90 S.W. 131; Morrison v. Juden, 145 Mo. 298, 46 S.W. 994; State Bank v. Frame, 112 Mo. 512, 20 S.W. 620; Taaffe v. Kelly, 110 Mo. 127, 19 S.W. 539. (2) Where land is conveyed to a railroad company in fee simple without limitation and for valuable consideration, a fee simple absolute is conveyed, and there is no reversion under Section 4655 upon abandonment of use for railroad purposes. Sec. 4655, R. S. 1929; Laws 1865, p. 27; Coates & Hopkins Realty Co. v. Kansas City Term. Ry. Co., 328 Mo. 1118, 43 S.W.2d 817; Allen v. Beasley, 297 Mo. 544, 249 S.W. 387. (3) The deeds from the original grantors to the St. Louis, St. Charles & Western Railroad Company convey a fee simple title without limitation and are not subject to any statutory provision limiting their effect. Even if it should be said in contradiction to the holding in the Coates case, supra, that conveyances of fee-simple title to a steam railroad company for valuable consideration reverted under Section 4655 upon an abandonment of use for railroad purposes, defendants must nevertheless prevail here, since the St. Louis, St. Charles & Western Railroad Company and its successors were electric street railroad corporations and, therefore, not subject to the provisions of Section 4655, Revised Statutes 1929, 3 Mo. Stat. Ann. 2072. Laws 1859, pp. 128-151, 516-518; Laws 1881, p. 84; Laws 1885, p. 94; Laws 1891, p. 97; Laws 1895, p. 123; Laws 1897, p. 98; R. S. 1929, secs. 4889-4915; Secs. 4823, 4911, R. S. 1929; Laws 1907, p. 174; Laws 1929, p. 378; Sams v. St. L. & M. Ry. Co., 194 Mo. 53, 73 S.W. 686; Omaha & Council Bluffs Street Ry. Co. v. Interstate Commerce Comm., 230 U.S. 324, 33 S.Ct. 890, 57 L.Ed. 1501; Front Street Cable Ry. Co. v. Johnson, 2 Wash. 112, 25 P. 1084, 11 L. R. A. 693; State v. Duluth Street Ry. Co., 76 Minn. 96, 78 N.W. 1032, 57 L. R. A. 63; Greene v. Aurora Rys., 157 F. 85. (4) A railroad company holding land for right of way purposes is without authority to grant an easement or license to an independently-owned electric transmission line. Munice Electric Light Co. v. Joliff, 59 Ind.App. 349, 109 N.E. 433; Crisp v. Nantahala P. & L. Co., 201 N.C. 46, 158 S.E. 845; St. Louis, Iron M. & S. Railroad Co. v. Cape Girardeau Bell Tel. Co., 134 Mo.App. 506, 114 S.W. 586; Query v. Postal Telegraph-Cable Co., 178 N.C. 639, 101 S.E. 390, 8 A. L. R. 1290; Fort Worth & Rio Grande Ry. Co. v. Jennings, 76 Tex. 373, 13 S.W. 270, 8 L. R. A. 108; Canadian Pac. Ry. Co. v. Moosehead Tel. Co., 106 Me. 363, 76 A. 885, 29 L. R. A. (N. S.) 703; American Tel. & Tel. Co. v. Smith, 71 Md. 535, 18 A. 910, 7 L. R. A. 200; Blakely v. Chicago, Kan. & Neb. Ry. Co., 34 Neb. 284, 51 N.W. 767; Western Union Tel. Co. v. Nashville, Chattanooga & St. Louis Ry. Co., 145 Tenn. 85, 237 S.W. 64; Hall v. Bowers, 117 Neb. 619, 222 N.W. 40, 61 A. L. R. 724.

Louis V. Stigall, Ralph M. Eubanks and Smith B. Atwood for respondent.

(1) Title may properly be adjudicated in a condemnation action. Sec. 696, R. S. 1929; State ex rel. v. Griffith, 114 S.W.2d 976, 342 Mo. 229; Ketchum Coal Co. v. District Court, 159 P. 737; Chicago & M. Electric Railroad Co. v. Diver, 72 N.E. 758; Wilcox v. St. Paul & N. P. Ry. Co., 29 N.W. 148; Gerrard v. Omaha N. & D. H. Ry. Co., 15 N.W. 231; Los Angeles v. Pomeroy, 57 P. 585. (2) Appellant acquired no title by the written agreement from the street railroad company. (a) A street railroad had no charter power to acquire a fee. Sec. 4911, R. S. 1929; 51 C. J. 535; Smith v. Hall, 103 Iowa 97, 72 N.W. 427; Jones v. Van Voschove, 61 N.W. 342; Omaha Street Ry. v. Interstate Commerce Comm., 230 U.S. 324; Sams v. St. L. & M. R. Ry. Co., 174 Mo. 53, 73 S.W. 686; McAdow v. Kentucky, 192 Mo.App. 550, 164 S.W. 188; Chouteau v. Mo. Pac. Ry. Co., 122 Mo. 375. (b) The parties construed the Luecke and Branneky deeds as mere "rights of way." On construing deeds by intention of parties. Warren v. Sarge, 258 Mo. 169, 167 S.W. 967; 4 Jones on Law of Evidence, p. 2833, sec. 1550; Williams v. Ry. Co., 153 Mo. 534, 54 S.W. 689; Carter v. Foster, 145 Mo. 497, 47 S.W. 6; Ellis v. Harrison, 104 Mo. 279, 16 S.W. 198; Wolfe v. Dyer, 95 Mo. 545, 8 S.W. 551; Union Depot Co. v. Railroad, 131 Mo. 305, 31 S.W. 908; Patterson v. Camden, 25 Mo. 21, 8 S.W. 167; Blumenthal v. Blumenthal, 251 Mo. 693, 158 S.W. 648; Gas Light Co. v. St. Louis, 46 Mo. 121; Livingston v. Gen. Broeck, 16 Johns. 15; Ambercrombie v. Simmons, 71 Kan. 538. (c) The "agreement" is not in form sufficient to convey an interest in land. Secs. 3017, 3019, R. S. 1929; Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72; 50 C. J., p. 768; Chicago, etc., Railroad Co. v. State, 128 Wis. 553, 108 N.W. 557; Mulrooney v. Obear, 171 Mo. 613, 71 S.W. 1019.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This cause was commenced to condemn certain land for state highway purposes. Commissioners were appointed and assessed defendants' damages at $ 3150. Plaintiff filed exceptions to the report. A jury trial was waived, and the cause tried before the court, resulting in a finding that defendants were "not damaged by reason of the appropriation of the real estate described in plaintiff's petition" for the reason that they had "no right, title or interest in and to said real estate." Defendants appealed separately and the appeals were numbered separately here, but there is only one cause. Defendant, Union Electric Company, claimed a fee interest in the land, hence title was involved and was determined, and jurisdiction of the appeal is in the Supreme Court. [Art. 6, Sec. 12, Constitution.]

The trust company was made a party defendant because it is the trustee in a deed of trust given by defendant, Union Electric. Hereinafter, the term defendant, referring to a party to this cause, has reference to the Union Electric.

Prior to January 18, 1932, the St. Louis Public Service Company and its predecessors, from a point (Hanley Road) in St. Louis County, operated an interurban railroad to St. Charles, Missouri, but on the date mentioned the St. Charles line was abandoned, and the public service company moved its poles, wires, and other equipment from the portion abandoned.

June 21, 1913, the Missouri Electric Railroad Company, the immediate predecessor of the St. Louis Public Service Company, granted permission to defendant to construct a transmission line on the interurban right of way from Hanley Road to St. Charles, and since 1916, the transmission line has been on land here involved. August 5, 1930, and in January, 1931, the St. Louis Public Service Company and defendant entered into further agreements concerning the occupancy of the land by the transmission line.

There are two parcels of land involved, and these are designated as tracts 1 and 3. November 15, 1900, and February 4, 1901, Frederick Luecke and wife, by general warranty deeds, and for the recited considerations, respectively, of $ 211.60 and $ 50, conveyed to the St. Louis, St. Charles & Western Railroad Company, a strip of land 25 feet in width and about 1850 feet in length, and a somewhat triangular piece of land about 385 feet in length, and with a width from 25 to 50 feet. The lands described in the Luecke deeds constitute tract No. 1.

November 10, 1900, William Branneky and wife, by general warranty deed, and for the recited consideration of $ 500, conveyed to the St. Louis, St. Charles & Western Railroad Company, a strip of land 100 feet in width and 3250 feet in length. March 5, 1911, the Brannekys executed a general warranty deed to the Missouri Electric Railroad Company which recites a consideration of $ 175, and also recites that the land conveyed was "the same right of way (italics ours) conveyed" by them to the St. Louis, St. Charles & Western Railroad Company on November 10, 1900. September 28 1912, the...