Dodd v. St. Louis & H. Ry. Co.

• Decision Date: 02 March 1892
• Citation: 108 Mo. 581,18 S.W. 1117
• Parties: DODD v. ST. LOUIS & H. RY. CO.
• Court: Missouri Supreme Court

18 S.W. 1117

108 Mo. 581

DODD v. ST. LOUIS & H. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 2, 1892.

ESTOPPEL IN PAIS — ASSERTION OF TITLE — ACQUIESCENCE OF REMAINDER-MAN.

1. Where a person conveys a portion of his land to a railway company for the purpose of constructing a road thereon, and with full knowledge permits the company to construct a railroad through other portions of his land also, and allows 16 years to elapse after the completion of the road before making any objection thereto, such person cannot recover such land in ejectment.

2. The fact that such person's interest in the land was subject to a life-estate is immaterial.

Appeal from circuit court, Rails county; THOMAS H. BACON, Judge.

Ejectment by James W. Dodd against the St. Louis & Hannibal Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Harrison & Mahan, for appellant. James H. Orr, for respondent.

THOMAS, J.

This is an action of ejectment for the recovery of a strip of land, 100 feet wide, through the W. ½, S. E. ¼, and E. part of the N. W. ¼, section 19, township 46, range 4 W., occupied by defendant for its railroad. Stephen Dodd owned this land at the time of his death, in 1836, and it was in 1840 set off to his widow for her dower. The widow occupied it till her death, which occurred in 1886. Plaintiff was one of the children of Stephen Dodd; and, after the death of said widow, this land was set off to him in a partition proceeding between him and the other heirs of his father. The defendant, in its answer, denied plaintiff's title, and set up matter constituting an estoppel in pais. To sustain these two defenses, defendant read in evidence a deed executed by plaintiff, dated May 23, 1870, by which he sold, conveyed, and relinquished to the St. Louis & Keokuk Railroad Company the right of way, 100 feet wide, through the W. ½, S. E. ¼, of section 19, and also through two tracts of land in section 30 of said township and range, in which deed were these stipulations: (1) The grantor reserved the timber and the right to cultivate the land not in actual use by said railway company, until it was fenced; (2) the company was to make necessary road crossings, fence the road as soon as the trains should be run, and in the mean time indemnify the grantors for all damage committed or suffered by it or its contractors or employes in the construction of the road, or for trespass or waste committed by laborers on the road by erection of shanties, stables, or other buildings. The defendant also introduced evidence tending to prove that the railroad was built in 1870 or 1871; that at that time plaintiff was about 41 years of age, and lived on said land, and continued to live and still lives on it; that from 1873 trains have run regularly over the road; that the construction of the road through said land cost about $10,000. Defendant company, for a valuable consideration, acquired the title to the railroad by intermediate conveyances from the St. Louis & Keokuk Railroad Company. The verdict was for the defendant, and it is now assigned for error that the court misdirected the jury, by telling them that if plaintiff, and those from whom he derived title, acquiesced in the building of the railroad on said land, he could not recover.

It is well settled in Missouri that ejectment will lie where a railway company builds its road over land to which it has acquired no requisite title by condemnation or conveyance or license, express or implied. Walker v. Railway Co., 57 Mo. 275; Bradley v. Railway Co., 91 Mo. 500, 4 S. W. Rep. 427. And it is equally well settled that a party who, with full knowledge, stands by and permits a company to expend large sums of money in the construction of a railroad through his land, without objection, forfeits his right of ejectment. Kanaga v. Railway Co., 76 Mo. 207; Provolt v. Railway Co., 57 Mo. 257; Masterson v. Railway Co., 72 Mo. 343; Reichert v. Railroad Co., (Ark.) 11 S. W. Rep. 696, 5 Lawy. Rep. Ann. 183, and notes. This right is forfeited by virtue of the application of the doctrine of estoppel as well as the intervention of public interests. Property in a railway is peculiar. A railway may be likened to a chain, which is worthless with one link out. The ejectment of the company from a mile or half a mile of its track almost wholly destroys the value of the entire line. The land-owner knows this, and when he...