aughlin v. Wells

• Decision Date: 24 May 1926
• Docket Number: 25490
• Citation: 283 S.W. 990,314 Mo. 474
• Parties: HENRY D. LAUGHLIN v. ROLLA WELLS, Receiver of United Railways Company of St. Louis, Appellant
• Court: Missouri Supreme Court

283 S.W. 990

314 Mo. 474

HENRY D. LAUGHLIN v. ROLLA WELLS, Receiver of United Railways Company of St. Louis, Appellant

No. 25490

Supreme Court of Missouri

May 24, 1926

Appeal from St. Louis County Circuit Court; Hon. G. A Wurdeman, Judge.

Affirmed.

Charles W. Bates, T. E. Francis, A. E. L. Gardner and J. F Evans for appellant.

Where a portion of the line of a railroad company used as a link in a continuous line for transportation of passengers as a common carrier is constructed and operated with the consent and acquiescence of the owner of the land, ejectment will not lie to oust the railroad company from the possession of such link in its line of railroad, but the landowner, in case the land is not paid for, is remitted to the remedies provided by the law for the recovery of the value of the land so used. Idalia Realty & Dev. Co. v. Ry. Co., 219 S.W. 923; Kansas City So. Ry. Co. v. Second Street Imp. Co., 256 Mo. 386; Second Street Imp. Co. v. Kansas City So Ry. Co., 255 Mo. 519; Dodd v. Ry. Co., 108 Mo. 581; Scarritt v. Kansas City So. Ry. Co., 127 Mo. 298; Provolt v. Railroad Co., 57 Mo. 256; Baker v. Railroad Co., 57 Mo. 265.

Rassieur & Long for respondent.

(1) Elements of estoppel being absent, ejectment lies against a railroad company, lessee, which promised to vacate a leased right-of-way on proper notice. Such cases are not affected by public interest. Lewis on Eminent Domain (3 Ed.) secs. 927, 929; Walker v. Railroad Co., 57 Mo. 275; Ells v. Railroad, 51 Mo. 200; Green v. Mo. Pac. Ry. Co., 82 Mo. 653; Bradley v. Mo. Pac. Ry. Co., 91 Mo. 493; Armstrong v. St. Louis, 69 Mo. 309; Snyder v. Ry. Co., 112 Mo. 527; Avery v. Railroad Co., 113 Mo. 561; Ruddick v. Ry. Co., 116 Mo. 25; Childs v. Railroad Co., 117 Mo. 414; State v. Eicher, 178 S.W. 171; McCarty v. Clark County, 101 Mo. 179. (2) Estoppel is an affirmative defense and must be pleaded, and when not pleaded the party wishing to set it up is concluded. Avery v. Railroad Co., 113 Mo. 561; Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Messersmith v. Messersmith, 22 Mo. 372; Central Nat. Bank v. Doran, 109 Mo. 51; Thockmorton v. Pence, 121 Mo. 60; Cockrill v. Hutchinson, 135 Mo. 75; Sanders v. Chartrand, 158 Mo. 361; Turner v. Edmonston, 210 Mo. 428; Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 311. (3) Where two parties enter into a clear and unambiguous lease, neither of the parties being misled by the other, there can be no estoppel. Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 311; Bayles v. Perry, 51 Mo. 449.

OPINION

Graves, J.

Action in ejectment for a small triangular tract of ground described as follows:

"Block one (1) of the subdivision in St. Louis County, Missouri, called Sycamore Hills, as said block is laid down and designated on the plat of said subdivision of record in the office of the Recorder of Deeds for St. Louis County, Missouri, which block is bounded on the north by Lackland Avenue, on the east by Jefferson (now Carter) and on the south by the right-of-way of the United Railways Company of St. Louis, said tract being triangular in shape."

The petition pleads that defendant is the receiver of the United Railways Company of St. Louis, and was appointed as such by the United States District Court in St. Louis. It also pleads that on application to such court an order was made permitting them to bring this suit in ejectment. Otherwise the petition is an ordinary petition in ejectment. The amended answer upon which the case was tried is as follows:

"Defendant, for his amended answer, herein states that Rolla Wells was duly appointed receiver of the United Railways Company of St. Louis on, to-wit, the 24th day of April, 1919, by the United States District Court within and for the Eastern Division of the Eastern Judicial District of the State of Missouri, and as such receiver is now and was at all times mentioned in plaintiff's petition in charge of and operating the properties of the United Railways Company in St. Louis.

"Defendant states that the United Railways Company is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri and was formed for the purpose of constructing and maintaining and operating a railroad for public use in the conveyance of persons and property in this State, and as such has for many years last past been engaged in maintaining and operating a railroad upon the western limits of the city of St. Louis westwardly through St. Louis County in this State.

"Defendant further states that it was at the time charged by plaintiff and still is in possession of the real estate described in plaintiff's said petition.

"Defendant, further answering, states that the strip of land described in plaintiff's said petition is occupied and used by the United Railways Company of St. Louis, a corporation, as a roadbed and right-of-way for its said railroad, and is a part and parcel of said right-of-way over which said defendant and its predecessors have for many years last past continuously operated its railroad system in the City and County of St. Louis in this State, and since taking possession of said real estate has continued to occupy and use the same as a roadbed and right-of-way for its said railroad and for no other purpose, and has constructed thereon permanent and valuable improvements for said purpose; that said United Railways Company of St. Louis has been for many years past and is now running and operating passenger cars at short intervals daily over said right-of-way.

"Defendant, further answering plaintiff's said petition, denies each and every allegation therein contained.

"Wherefore, defendant having fully answered, prays to be discharged with its costs."

No reply appears in the record, but the cause proceeded as if one had been filed. The judgment, upon trial nisi, was in favor of plaintiff for the possession of the property, for $ 100 damages for the detention of the property, and a fixing of the monthly rents at $ 15 per month. From this judgment the defendant appeals. The case hinges around a certain lease made by plaintiff to the United Railways Company of St. Louis, and subsequent actions thereunder. This lease reads:

"This Agreement made and entered into on the 9th day of September, 1907, by and between Henry D. Laughlin, of Chicago, Illinois, as Lessor, and the United Railways Company of St. Louis, a corporation owning and operating the street railway system of St. Louis and St. Louis County, as Lessee,

"Witnesseth, for and in consideration of the sum of one dollar to be paid by the Lessee annually on the first day of January of each and every year throughout which this Contract may continue, the Lessor leases unto said Lessee the following described premises laying and being situate in the County of St. Louis in the State of Missouri, to-wit:

"The whole of Block One (1) of Sycamore Hills, as said block is laid down and designated on the plat of said Subdivision on file in the office of the Recorder of Deeds in and for said county, which block is bounded on the north by Lackland Avenue, on the east by Jefferson, and on the south by the right-of-way of the Lessee, the tract being triangular in shape.

"This lease may be terminated by either party to it by giving to the other written notice of his intention to terminate it six months prior to the thirty-first (31st) day of December in any year, but unless and until terminated it shall continue indefinitely.

"The purposes for which the property may be used are limited to the purposes of the operation of a trolley line railroad; and it is covenanted by the Lessee that upon the termination of this lease it will yield up and deliver to the Lessor, or his legal representative, possession of the demised premises, having removed therefrom all its railroad property, its rails, ties, poles and other things which it agrees to remove prior to delivery of possession, and to leave the premises in substantially the condition they are at the present time.

"In Testimony of which said Lessor has hereunto set his hand and seal and the Lessee has caused the same to be duly executed by its proper officers under its corporate seal.

"All in duplicate."

In the year 1916, the plaintiff served upon the defendant, and the corporation which he represented, the following written notice:

"Chicago June 16, 1919.

"To the United Railways Co. of St. Louis and Rolla Wells, its Receiver,

"St. Louis Mo.

"Gentlemen: --

"The Lease from me to you of Block One (1) of the subdivision in St. Louis County called Sycamore Hills, 'as said Block is laid down and designated on the Plat of said Subdivision of Record in the office of the Recorder of Deeds' for St. Louis County, 'which Block is bounded on the north by Lackland Avenue, on the east by Jefferson (now Carter) and on the south by the right-of-way of the Lessee, the tract being triangular in shape,' and bearing date the 9th day of September, 1907, contains the following provision:

"'This Lease may be terminated by either party to it by giving to the other written notice of his intention to terminate it six months prior to the thirty-first (31st) day of December in any year, but unless or until terminated it shall continue indefinitely.'

"You and each of you, are hereby notified of my intention to terminate the Lease referred to on the 31st day of December, A. D. 1919; that on that day the term covered by it will end, and that immediately following that date I will require you to 'yield up and deliver' possession of the demised premises to me, and to otherwise comply with the provisions of the Lease relating to the removal of all your railroad property, your rails, ties, poles and other things, and to leave the premises 'in substantially...