The Kansas City & Southeastern Railway Company v. The Kansas City & Southwestern Railway Company

Decision Date04 June 1895
PartiesThe Kansas City & Southeastern Railway Company, v. The Kansas City & Southwestern Railway Company et al., Appellants
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court.

Affirmed.

Elijah Robinson for appellants.

(1) The evidence in this case fails to show title in the plaintiff to the strip of ground in controversy. (2) The defendant's road had been constructed and in operation more than two years before the time when plaintiff company undertook to cross. A court of equity will not try the question of title between two claimants to real estate nor will it oust one and put the other in possession. 1 Am. & Eng. R. R. Cases, page 12; People v. Simondson, 10 Mich. 335. (3) The Kansas City, Memphis & Mobile Railroad not having been finished and put in operation within ten years from the time of filing its articles of association, its corporate powers ceased, and neither it nor any person or corporation claiming under it, could, after the lapse of sixteen or eighteen years, assert title to and take possession of the right of way in question. R. S. 1889, sec. 2664.

Johnson & Lucas for respondent.

(1) No question is better settled than that the existence of the corporation, and exercise of corporate franchise can be questioned only by the state. Railroad v. City, 66 Mo. 228; Ins. Co. v. Smith, 117 Mo. 289; Newell v. Railroad, 35 Minn. 123. (2) The evidence shows purchase in 1873, grading of right of way in 1875, sale by Memphis road to Bancroft in 1877, by Bancroft to Brooks in 1880, actual resumption of work on a part of the road in 1881, and continuous work thereafter to the bringing of this action. (3) Possession of a part under claim of ownership of the whole for the statutory period conveys title. Hargis v. Railroad, 100 Mo. 210; Railroad v. Railroad, 10 Am. & Eng. R. R. Cases, 138. (4) The taking and condemnation by a railroad company of part of the roadbed of another company, is an interference with the rights and franchises of such other company, and one railway company has no right, without express statutory authority, to acquire for its own uses, land already acquired by another railroad company. Railroad v. Railroad, 40 Am. Rep. 743. (5) Mere non user in the absence of adverse possession will not constitute an abandonment. Railroad v. Ruggles, 7 Ohio St. 1. (6) An easement acquired by grant or conveyance can not be lost by abandonment. Farris v. Cooper, 34 Me. 400; Heyford v. Spiekesfield, 100 Mass. 494; Noll v Railroad, 32 Iowa 66. (7) And again: Sale and conveyance to another railroad company do not constitute abandonment. Culley v. Railroad, 30 Minn. 541; Harrison v Railroad, 9 B. Mon. 470. (8) Injunction will issue to prevent the invasion of a right secured by statute. Railroad v. Railroad, 69 Mo. 65. (9) And will interfere to protect and secure the enjoyment of a franchise given by statute, because it affords the only and adequate remedy for the wrong. Railroad v. Springfield, 85 Mo. 65. (10) And will issue to restrain a trespass wherever an adequate remedy can not be afforded by an action for damages. Turner v. Stewart, 78 Mo. 480; Lockwood v Lunsford, 56 Mo. 68.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

This is an appeal from a decree of perpetual injunction, granted by the circuit court of Jackson county, forever restraining the Kansas City & Southwestern Railway company and the Missouri Pacific Railway Company, which operates said Southwestern Company, from disturbing the plaintiff, the Kansas City & Southeastern Railway Company in its possession of its right of way over the northwest quarter of the northwest quarter of section twenty-two (22), township 48, range 33, in Jackson county, Missouri.

In 1873 the Kansas City, Memphis & Mobile Railroad Company surveyed and located its route to Osceola, in St. Clair county, Missouri, and filed its profile map as required by section 2564, Revised Statutes, 1889, in the office of the clerk of the county court of Jackson county, and the several counties of Cass, Henry and St. Clair; said route was located over and upon a strip of land one hundred feet in width, of northwest quarter of northwest quarter of section twenty-two (22), township forty-eight (48), of range thirty-three (33). On the twenty-ninth day of August, 1873, said railroad acquired from P. J. Kelly, the then owner of the fee of said land, the title to said premises by a deed of conveyance therefor. After securing said deed the company constructed its roadbed thereon to its established grade. Subsequently the said Kansas City, Memphis & Mobile Railroad was sold and conveyed to one Bancroft, who afterward conveyed the same to one James I. Brooks, who conveyed to Kansas City & Southern Construction Company, which in turn conveyed to the Kansas City & Southern Railway Company, under whom, by deed of conveyance, plaintiff now holds.

In 1881 the Kansas City & Southern Railway Company began the laying of the track and completed one and one quarter miles, and in 1882 again began the laying of the track and has continuously been engaged therein from that time to the date the same was completed from Osceola to Kansas City, Missouri. In 1884, the profile map of the old Kansas City, Memphis & Mobile Railway Company having been lost or stolen, the Kansas City & Southern Railway Company caused its road to be re-surveyed, and filed in the office of the said clerk of the county court of Jackson county a profile map, showing its location over the land in controversy.

In 1886 track laying was begun at a point near Westport, and the track of plaintiff's line of road extended to Waldo Park, and in 1887 and 1888 completed to a connection with the Kansas City & Southern, near Hart's Grove creek (except the crossing in question). In 1887, or early in 1888, the Kansay City & Southwestern Railway Company (organized June 5, 1886), under whom defendant claims, crossed the right of way of plaintiff on the grade as established by plaintiff and its grantors, and now asserts that plaintiff should not cross this land over which it laid its track on the grade established by plaintiff, without first having a condemnation action authorizing it so to do.

The defendant claims under deed, of date August 30, 1886, from one Dodson who testified that he bought of one Ferdinand Arn; that he never claimed any right to the roadbed or right of way of the complainant, and that the defendant constructed its road across and on the grade of the complainant. This deed was the only claim of right on the part of the defendant.

Soon after Kelly executed the deed to the plaintiff's grantor for the right of way, as above stated, he conveyed the said forty acre tract of land to one Frederick Arn. The deed from Kelly to Arn excepted "the right of way heretofore conveyed to the Kansas City, Memphis & Mobile Railway Company."

All the various steps leading up to the incorporation of the plaintiff road and its acquisition of the title of the Kansas City, Memphis & Mobile Railroad Company to the right of way in question was in evidence, and a mass of testimony as to the building of the road and the various lapses therein.

The circuit court found for the plaintiff and enjoined defendants from further interference with its rights over said crossing.

I. The first contention of the defendant is that plaintiff had no title to the right of way owing to the incapacity of the Kansas City, Memphis & Mobile Railroad Company to build a railroad and acquire a right of way therefor in Jackson county, Missouri, because Jackson county was not named in its articles of incorporation, and because of certain informalities in the sale of the branch of the Tebo & Neosho Railroad to said Memphis & Mobile Road.

The record shows the establishment of a branch by the Tebo & Neosho Railroad, the construction of its roadbed, the acquisition thereof by the Kansas City, Memphis & Mobile Railroad Company, the taking of possession and...

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    • United States State Supreme Court of Missouri
    • July 14, 1914
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