Roanoke Investment Co. v. Kansas City & S. E. R. Co.

• Citation: 108 Mo. 50,17 S.W. 1000
• Court: United States State Supreme Court of Missouri
• Decision Date: 02 December 1891
• Parties: ROANOKE INVESTMENT CO. v. KANSAS CITY & S. E. R. Co.<SMALL><SUP>1</SUP></SMALL>

17 S.W. 1000

108 Mo. 50

ROANOKE INVESTMENT CO. v. KANSAS CITY & S. E. R. Co.¹

Supreme Court of Missouri, Division No. 2.

December 2, 1891.

RAILROAD COMPANIES — ABANDONMENT OF RIGHT OF WAY — CONDITION SUBSEQUENT.

1. The mere non-user of a right of way granted to a railroad company will not extinguish the right in the absence of adverse possession by the servient owner, or of such acts on the part of the railroad company as evince a clear intention to abandon the right of way.

2. The grantor of a right of way for railroad purposes testified as to the terms of the conveyance, the deed having been lost, that the railroad company was to build two double track bridges "across that cut, [on grantor's land.] * * * That was the words of the contract. * * * It was part of the contract that they were to build these bridges immediately after the road-bed was finished." Held, that the portion of the contract relating to the bridges was not a condition subsequent, failure to perform which would forfeit the grant.

3. Land for a right of way was conveyed to a railroad company "and its assigns forever, so long as the said land hereby conveyed shall be used for railroad purposes," and the road-bed was graded on it. Afterwards the successor of the grantee company completed the road by a new route, and refused to construct it on the land so conveyed, on the ground that the grade was too heavy. The owner of the tract through which the right of way was conveyed occupied the right of way for five years after the completion of the road by the new route, and put valuable improvements on it without objection from the railroad company. Held, that the right of way was abandoned, and reverted to the owner of the tract of which it was originally a part.

Appeal from circuit court, Jackson county; T. A. GILL, Judge.

Action by the Roanoke Investment Company against the Kansas City & Southeastern Railroad Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Johnson & Lucas and C. O. Tichenor, for appellant. Dobson, McCune & Doggett and Trimble & Braley, for respondent.

GANTT, P. J.

This is a civil action to perpetually enjoin the Kansas City & Southeastern Railroad Company from entering, building, and operating a railroad through 92.3 acres in the N. E. ¼ of section 19, township 49, range 33, in Jackson county, Mo. The plaintiff is a business corporation organized under the laws of this state, and the defendant is a railroad corporation organized under the laws of this state also, and its owners. Plaintiff had laid off the lands into town lots, streets, and blocks as an addition to Kansas City. It charges that the defendant is about, wrongfully, illegally, and without plaintiff's consent, to enter upon these lands, build and excavate a road-bed for a railroad, and appropriate a right of way across said lands, in violation of the constitution, and to the irreparable damage of plaintiff. The answer of the defendant is (1) a general denial, and (2) that it is the owner and entitled to the possession of a right of way for a railroad through, over, and across the lands described in the petition of the width of 100 feet, and is the owner and entitled to the possession of a graded road-bed for a railroad, situated on said right of way, and was such owner, and so entitled to the possession of said right of way and graded road-bed, at the time of the filing of the petition in this cause, and ever since has been. To this plaintiff replied: (1) Denying defendant was the owner of the right of way; (2) that plaintiff, and those under whom it claimed, had been in the open, notorious, peaceable, continuous, and adverse possession of said lands, including the right of way, for 13 years next preceding the commencement of this suit; (3) that defendant, and those persons under whom it claimed title to the alleged right of way and road-bed, have long since wholly lost right to the possession and use of said right of way and road-bed by abandonment, if it or they ever had such right. These facts were developed upon the trial in the circuit court.

On the 14th day of August, 1871, "the Kansas City, Memphis & Mobile Railroad Company was organized under the laws of this state." At that time, and for many years previous thereto, and until the year 1873, A. B. H. McGee was the owner of the 92-acre tract of land described in the petition. In 1873, McGee conveyed by deed to Kansas City, Memphis & Mobile Railroad Company the right of way through the lands in question. That conveyance was never recorded, and appears to have been lost, but McGee is positive that he delivered such a deed. When shown another deed to other lands by himself and wife to the same company for a right of way, he testified: "They were worded the same, because the same man wrote them both, I think." The deed shown him was the ordinary form of "grant, bargain, and sell," with a limitation in the habendum clause as follows: "Unto said party of the second part, [the defendant herein,] and its assigns, forever, [meaning thereby] so long as the said land hereby conveyed shall be used for railroad purposes." McGee testified the railroad company paid him $5,000 in money, and agreed to build him two bridges over the cut made by the road through his land. The deed was executed and delivered about the month of October, 1873. The road ran about three-fourths of a mile through this land. The cut was 30 feet deep a portion of the way, and a heavy fill the remainder. McGee testifies that the road was about half constructed through his land when he made the deed. He put up fences inclosing this right of way with his pasture before he executed the deed. The railroad company expended about $20,000 on this tract, and completed the road-bed some time in 1874. On 4th of February, 1876, the railroad company was adjudged a bankrupt, and Turner A. Gill, Gardner Lathrop, and Henry Flannagan were duly elected and confirmed assignees. Under an order and judgment of the United States district court for the western district of Missouri, the bed, masonry, right of way, and appurtenances of said railroad were sold by said assignees to John D. Bancroft for $15,025, and a deed duly executed April 25, 1877. It appears that the county of Jackson had subscribed and paid to said company $300,000, and the merchants of Kansas City were greatly interested in the building of the road. Accordingly, April 2, 1877, Bancroft made a deed to Thomas K. Hanna, Benjamin McLean, and John D. Bancroft, in trust for themselves and their associates, business and professional men of Kansas City. January 13, 1880, Hanna, McLean, and Bancroft, in execution of their trust, conveyed to James I. Brooks all of said property. On the 27th February, 1880, Brooks conveyed all the property he had thus acquired to the Kansas City & Southern Construction Company. On the 10th of June, 1880, the Kansas City & Southeastern Railway Company was organized and received its certificate of incorporation from the state of Missouri. On the 18th September, 1880, the Kansas City & Southern Construction Company conveyed all of the road-bed, franchises, etc., to the Kansas City & Southeastern Railway Company; and on the 15th day of December, Hanna, McLean, and Bancroft also remised, released, and quitclaimed to the last-named railroad all the rights they held for themselves and their associates. During the period of bankruptcy the various owners of this railroad and right of way were unable to finish their road, and all work was stopped. On May 25, 1882, McGee conveyed the 92-acre tract to the Kansas City Interstate Fair for $425 per acre. The fair company took possession of the whole tract, including the right of way involved in this action; constructed a race track across this right of way in two places; built stables, amphitheater, and other improvements. William R. Bernard testified he was one of the judges of the county court of Jackson county, and knew that Jackson county spent $300,000 on that grade; that it was completed October 27, 1874. He also testified that he knew of McGee fencing this tract. He was also a director and superintendent of the fair association. In its behalf he took possession after McGee deeded them the tract. He knew McGee had received the purchase money for this land prior to the fair association buying and taking possession, and knew McGee had conveyed it from conversations with McGee. On 2d July, 1887, the Kansas City Interstate Fair conveyed the 92.3 acres to Roanoke Investment Company. The deed so made contains this clause: "The east thirty (30) feet of land off the east side of the tract herein described, being conveyed subject to the rights of the public therein for highway purposes, excepting from the covenants expressed and implied herein the right of way through said land for railway purposes, if any such exist, of the Kansas City, Memphis and Mobile Railroad Company, and those claiming through or under it." Mr. A. A. Whipple, who was the promoter of the scheme to organize the plaintiff corporation, and it seems the general manager of its affairs after organized, testified that he had been familiar with the cut through McGee's land for at least 13 years. After his company bought he had a conversation with John I. Blair, who was the chief owner of the Kansas City & Southeastern Railway. Blair told him he was going to utilize the right of way, and Whipple says, "We had some kind of agreement for a while." This witness produced the contract between the fair association and S. T. Whipple & Co., agents for a corporation thereafter to be formed, and afterwards the plaintiff herein. This contract was for the 128 acres, (including the 92.3 sold to the fair by McGee,) less 5 acres, the right of way of the railroad through the same, known as the "Blair Right of Way," which is to be conveyed by sellers to buyers by "quitclaim, at a nominal consideration." These words, the bill of exceptions recites, had a pencil...