Juden v. Southeast Mo. Tel. Co.
| Decision Date | 11 December 1950 |
| Docket Number | No. 1,No. 41669,41669,1 |
| Citation | 235 S.W.2d 360,361 Mo. 513 |
| Parties | JUDEN et al. v. SOUTHEAST MISSOURI TEL. CO |
| Court | Missouri Supreme Court |
Robert G. Brady, Jack O. Knehans, Cape Girradeau, for appellants.
Oliver & Oliver, Cape Girardeau, for respondent.
LOZIER, Commissioner.
Appellants (herein called plaintiffs) appeal from a dismissal of their petition upon these grounds: failure to state a claim upon which legal or equitable relief may be founded; failure to show any interest of plaintiffs or any of them in the subject matter; and that the alleged cause of action was barred by limitations. The primary issue is construction of a deed.
Respondent telephone company (herein called defendant) is a Missouri corporation and plaintiffs are the heirs of Mary H. Giboney Houck who died in 1944. The petition alleged that on or about February 1, 1927, Mrs. Houck delivered to the Cape Girardeau Bridge Company, a Missouri corporation (herein called the bridge company) her warranty deed to certain lands in Alexander County, Illinois; that the lands consisted of a 100 foot strip east of the center of a levee along the Mississippi River and a 200 foot strip between the center of the levee and the center of the river and the western boundary line of the State of Illinois; that the consideration was $15,000. (This deed is herein called the bridge deed.)
The petition further alleged that the deed contained a provision that the conveyance and warranty were 'subject to all rights-of-way for levees and public roads now existing on' such lands and 'subject to all rights, if any exist, of the United States, the State of Illinois, or the public between the bank of the river and center of stream.' (This provision is herein called the 'subject to' clause.)
The petition further alleged that the bridge deed contained this provision: 'This conveyance is made, however, upon the following terms, conditions and restrictions, to wit: that said Cape Girardeau Bridge Company shall use said real estate for the sole and only purpose of erecting, maintaining and operating thereon a bridge across the said river with approaches thereto and with the privilege of constructing a tollgate and caretaker's house on said real estate, or other houses or buildings not of a commercial character but necessary for the construction, operation and maintenance of said bridge, it being understood that no structure of any kind, other than such bridge and approaches and tollgate and caretaker's house, building or buildings as above described, shall ever be constructed or used on said real estate, nor shall any business other than that of erecting, maintaining and operating said bridge ever be conducted on said real estate, these terms, conditions and restrictions being made for the benefit of grantor's land on both sides of the said real estate and the grantor reserves for herself, her heirs and assigns, for the purpose of enabling her or them or any of them to enforce the said terms, conditions and testrictions, the right to proceed by suit in ejectment, or for trespass, or for damages or for injunction, or by any other appropriate proceedings in law or equity against any person or corporation that may ever occupy or use the real estate herein conveyed or any part thereof for any purpose or in any manner other than as above restricted and provided.' (This provision is herein called the restrictive clause.)
The petition further alleged that, on October 5, 1928, Mrs. Houck, by dedication deed for state highway purposes, conveyed to the State of Illinois an 80 foot strip for State Highway No. 146, described as beginning at the east end of the 100 foot strip conveyed in the bridge deed and running eastwardly to the east boundary line of Mrs. Houck's land (this deed is herein called the highway deed); and that this highway begins at the east end of the bridge deed strip.
The petition further alleged that by written contract dated March 28, 1929, Mrs. Houck granted to the Cape Girardeau Bell Telephone Company, defendant's predecessor, the right to install, maintain and operate telephone facilities on the highway deed strip but not upon the bridge deed strip (this contract is herein called the telephone company easement); and that Mrs. Houck had devised to plaintiffs the land described in the bridge deed and the lands adjoining and abutting same on both sides.
The petition then alleged that defendant had unlawfully and maliciously erected, and was then maintaining and operating, telephone facilities on the bridge and its eastern approach and on the lands described in the bridge deed in violation of the provisions of the deed; that defendant had received a vast income and profit; and that plaintiffs had sustained damages.
In one count, plaintiffs demanded $50,000 actual and $50,000 punitive damages or, in the alternate, that defendant be required to account and that plaintiffs have judgment for all income and profit realized by the defendant by virtue of the alleged trespass. In another count, plaintiffs prayed an injunction against further maintenance and operation of the telephone facilities and for their removal from the bridge and from the lands described in the bridge deed.
We construe the bridge deed in accordance with Illinois law. Restatement, Conflict of Laws, Sec. 214; and see DeLashmutt v. Teetor, 261 Mo. 412, 169 S.W. 34. We seek to ascertain the intent of the parties. Smith v. Grubb, 402 Ill. 451, 84 N.E.2d 421. We 'look to the circumstances attending the transaction, the situation of the parties, the state of the thing granted and the object to be attained'. Midwest-Radiant Corp. v. Hentze, 7 Cir., 171 F.2d 635, 638, and Illinois cases cited therein.
The bridge deed recited that the grantor 'conveys and warrants' the lands. It is defendant's position that the deed conveyed an unqualified fee simple, citing Secs. 8 and 12, Chap. 30, Smith-Hurd Ill.Ann.Stat. Sec. 8 sets out a permissive form wherein the grantor 'conveys and warrants', and provides that 'Every deed in substance' in such form shall be deemed a conveyance in fee simple with covenants of seisin, against encumbrances and of warranty. (Italics ours.) Sec. 12 provides that where words of inheritance are not used the conveyance 'shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law.' (Italics ours.)
Secs. 8 and 12 must be read together. Tallman v. Eastern Ill. & Peoria R. Co., 379 Ill. 441, 41 N.E.2d 537. Their purpose is the elimination of the necessity of the use of words of inheritance for conveying a fee simple. Absent words of inheritance and absent other provisions, 'conveys and warrants' conveys a fee simple with covenants. Noe v. Moseley, 377 Ill. 152, 36 N.E.2d 240; and Tallman v. Eastern Ill. & Peoria R. Co., supra. But these sections do not support defendant's contention that the bridge deed conveyed an unqualified fee simple and is to be construed as if the restrictive clause were not written therein. While the grantor 'conveys and warrants', no words of inheritance are used, and the deed contains 'express words' and language 'appearing' to limit the estate conveyed.
'In construing deeds in statutory form, this court has said that the cardinal and all-important rule is to ascertain the intention of the parties and the deed should be so construed as to carry out the intention gathered from the entire instrument, and its purpose, if legal, should be carried into effect so as not to defeat the manifest intention, and every word within the instrument should be considered, and, if possible, given effect.' Keen v. Cleveland, C., C. & St. L. Ry. Co., 392 Ill. 362, 64 N.E.2d 499, 502. See also Magnolia Petroleum Co. v. West, 374 Ill. 516, 30 N.E.2d 24, 136 A.L.R. 372; Smith v. Grubb, supra; Tallman v. Eastern Ill. & Peoria R. Co., supra; and Illinois cases cited in Midwest-Radiant Corp. v. Hentze, supra. Both the 'subject to' and the restrictive clauses in the bridge deed must be considered.
The bridge company obviously acquired a fee simple title, with the right to use, or license the use of, the bridge and its approaches for all lawful purposes unless limited by other provisions of the bridge deed. In the restrictive clause, Mrs. Houck recognized that her grantee was acquiring the lands for use in the construction, maintenance and operation of a bridge over the Mississippi River, a navigable stream at Cape Girardeau. So, in ascertaining the intention of the parties, we must consider two acts of Congress.
By an act approved May 3, 1926, 44 Stat. 390, the bridge company's predecessor was authorized to construct, maintain and operate a toll bridge in accordance with the provisions of a 1906 act relating generally to bridges over navigable streams, 34 Stat. 84, 33 U.S.C.A....
To continue reading
Request your trial