Byam v. Public Service Co.

Decision Date05 September 1931
Docket NumberNo. 29696.,29696.
Citation41 S.W.2d 945
PartiesFRANK BYAM, JR., Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY.
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. Hon. Willard P. Hall, Judge.

AFFIRMED.

W.B. Kelley for appellant.

(1) The filing of the plat of Cusenbary Homestead could not affect the title to the land in question, as it was excepted from the land platted by express words, and is therefore no part of the plat. Snoddy v. Bolen, 122 Mo. 486; 18 C.J. 52; Chicago E.T.C. Ry. Co. v. Hayes (Colo.), 113 Pac. 315. (2) The trial court should have admitted the evidence offered by plaintiff as to what his intentions were as to dedications in filing the plat, also as to the intentions and statements of the seller to plaintiff, at the time of the purchase of the land in question. 18 C.J. 92; California v. Burke, 292 Mo. 475; Chicago v. Railway Co., 30 N.E. 768. (3) There can be no estoppel under the facts in this case. Laughlin v. Wells, 314 Mo. 474, 283 S.W. 990; Walker v. Railway Co., 57 Mo. 375; Western New York, etc., Railway Co. v. Richards, 19 Atl. 931; Mapes v. Railway Co., 87 N.E. 393; Chicago, etc., Railway Co. v. Des Moines Union Railway Co., 144 N.W. 70; Oregon R. & N.A.V. Co. v. McDonald (Wash.), 32 L.R.A. (N.S.) 177. (4) The lease of Fairmount Park made by the Cusenbary heirs to the Ingersol Amusement Company, to which lease appellant was not a party, was not admissible in evidence in this suit, and could not affect the title to the land in question. Clark v. Wabash (Iowa), 109 N.W. 309.

Watson, Gage, Ess, Groner & Barnett and John R. Moberly for respondent.

(1) The conveyance of the land in Cusenbary Homestead to appellant subject to respondent's right-of-way, appellant's acceptance of the conveyance, his platting and subdividing of Cusenbary Homestead, the plain and unambiguous terms of the plat and the designation of the right-of-way thereon, and appellant's sale of lots in accordance with said plat, all constitute a dedication of the right-of-way by appellant and his grantors to public use for railroad purposes. 18 C.J. 56, 64, 65; Constitution of Missouri, Art. 12, Sec. 14; Summers v. Ry. Co., 2 Fed. (2d) 718; Rose v. St. Charles, 49 Mo. 509; Drimmel v. Kansas City, 180 Mo. App. 339. Appellant, recognizing the long established public use of the right-of-way, rededicated it by plat. 18 C.J. 56, 61; Town of Otterville v. Bente, 240 Mo. 291; Naylor v. Harrisonville, 207 Mo. 341; Kansas City & Northern Connecting Railroad Co. v. Baker, 183 Mo. 312; Buschman v. St. Louis, 121 Mo. 523; Goode v. St. Louis, 113 Mo. 257; Hannibal v. Draper's Heirs, 36 Mo. 332; Hannibal v. Draper, 15 Mo. 634. (2) Appellant could not alter the effect of his acts, nor vary instruments of record recognizing and reaffirming the public use and dedication of the right-of-way by testimony as to his intentions and the hearsay statements of his grantors and others. 18 C.J. 54, 92, 277; Perkins v. Fielding, 119 Mo. 149; Weissenfels v. Cable, 208 Mo. 515; School District of Kansas City v. Phoenix Land & Imp. Co., 297 Mo. 332. (3) Appellant was estopped to deny respondent's right to occupy and use the land here in question as a railroad right-of-way in public use, by reason of his own and his grantors' many years' acquiescence therein, by his acceptance of the land in Cusenbary Homestead subject to the right-of-way, and by his re-dedication thereof to public use by his plat of Cusenbary Homestead and the sale of lots in accordance with said plat. 18 C.J. 54, 56, 58; 51 C.J. 518; 33 Cyc. 156; Idalia Realty & Development Co. v. Railway Co., 219 S.W. 923; Second Street Improvement Co. v. Ry. Co., 255 Mo. 526; Alexander v. Railroad Co., 138 Mo. 473; Ettenson v. Railroad Co., 248 Mo. 395; Town of Otterville v. Bente, 240 Mo. 296; Cape Girardeau Railroad Co. v. Ry. Co., 222 Mo. 484. Estoppel in pais presents a question of fact which in a law case tried without a jury is to be determined by the court, and the trial court's finding, based upon evidence supporting it on any theory, is conclusive and binding upon the appellate court and must be accepted as final. 18 C.J. 58; Goode v. St. Louis, 113 Mo. 257; Hatton v. St. Louis, 264 Mo. 634; Drimmel v. Kansas City, 180 Mo. App. 339; Cullen v. Johnson, 29 S.W. (2d) 39; Burgess v. Magers, 24 S.W. (2d) 1042; Exchange Finance Co. v. Brown, 14 S.W. (2d) 683; Clayton v. Gentle, 14 S.W. (2d) 672; Warren v. Fritsch, 14 S.W. (2d) 29. (4) The trial court did not err in admitting the Fairmount Park lease in evidence as showing matters of public record affecting the right-of-way at the time of appellant's purchase and of which he must be held to have had knowledge, and as clearly showing, as a matter of public record, the intention of appellant's grantors not to confer upon him any sovereignty over the right-of-way, but to perpetuate its public use for railway purposes. Sanzenbacher v. Santhuff, 220 Mo. 274; Hubbard v. Slavens, 218 Mo. 598; Ettenson v. Railroad Co., 248 Mo. 395.

HYDE, C.

This action is ejectment, the answer a general denial, a denial of appellant's title and a plea of estoppel. There is no real dispute about the material facts, most of which are shown by public records. Many years before 1891 James D. Cusenbary became the owner of the southwest quarter of Section 33, Township 50, Range 32, in Jackson County, upon which he built his home. In 1891, Cusenbary conveyed to the Kansas City & Independence Air Line Railroad and its successors, a railroad right of way running from about the center of the south line of this quarter section in a northwesterly direction across it. There was a road or street, originally called Independence Road, later Independence Avenue, along the south side of Cusenbary's land. The south line of the southwest quarter was the center of this road. Cusenbary had established a park in the east part of the southwest quarter, near his residence, known as Cusenbary Springs Park. This park became later known as Fairmount Park. The west boundary of the park was about 350 feet east of the land conveyed to the Air Line Railroad.

In 1892 Cusenbary conveyed to the Air Line Railroad another tract of land, which was a strip on the north side of Independence Avenue, for a railroad switch into the park, to be used solely for the purpose of transporting freight and passengers to and from the park. The deed prohibited its use in the general business of the railroad or leaving freight cars standing on it, and provided that in case the park was not used for park purposes "the right of way is to be forfeited to aid first parties, their heirs or assigns." The Air Line Railroad graded this strip and constructed a double-track railroad switch from its main line into the park and used it until 1898. Then it made a lease to the Park Connecting Railway Company for a term ending October 1, 1917, giving it the right of connecting its electric railway with the main line of the Air Line Railroad, and operating its electric cars over the main line to the park switch and over the switch into Fairmount Park, for the purpose of transporting freight and passengers to and from the park.

The Park Railway, however, constructed a double-track electric railway from Kansas City across the main line of the Air Line Railroad and thence east, along the north side of Independence Avenue, to the old double-track switch of the Air Line Railroad, where it connected with the switch directly in front of Cusenbary's residence. From the residence to the main line of the Air Line Railroad, the new electric railroad was south of the old switch, which ran from that point in a northwesterly direction to the main line, so that from the main line to Cusenbary's residence there were four railroad tracks, instead of two, which he had to cross to get to Independence Avenue. The Park Railway permitted the Metropolitan Street Railway of Kansas City to operate its street cars from Kansas City into the park over this track. Cusenbary commenced a suit in ejectment against all three railways because of this use. The court found that the construction of the two extra tracks from the main line of the Air Line Railroad to its junction with the old switch, in front of Cusenbary's residence, and the operation of electric cars by the Metropolitan Railway constituted an additional burden on the strip, not embodied in the deed from Cusenbary to the Air Line Railroad, which was illegal and wrongful. The court entered a decree enjoining the Park Railway and the Metropolitan Railway from operating any cars upon the double-track railway constructed by the Park Railway from the main line of the Air Line Railroad to its junction with the double-track switch or on any part of the switch unless the right to operate cars upon the railroad and switch was acquired by agreement or by condemnation. The court further ordered the railway companies to remove the railroad constructed by the Park Railway and all poles and wires along it or the switch on or before April 1, 1899, unless such rights were acquired before that time. The Park Railway did commence a condemnation proceeding and by decree therein the whole tract from Fairmount Park to the main line of the Air Line Railroad was vested in it, "its successors and assigns for the uses and purposes of a railroad right of way for a period of years ending on the first day of October, 1917," subject to the condition that freight cars should not be stored thereon.

James D. Cusenbary died in 1911. By his will he left Fairmount Park to his son and two daughters, subject to certain restrictions and a trust, of which the Fidelity Trust Company of Kansas City was trustee. A tract adjoining the park on the west, upon which the old residence stood, was conveyed by his other two children in 1913 to his daughter, Anna May Waters. This tract was described as follows:

"Beginning at a point on the south line of Section 33, Township 50, Range 32, 1,000 feet west of the...

To continue reading

Request your trial
22 cases
  • Case v. Morrisette, 22810.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 27 Febrero 1973
    ......768, 19 L.Ed.2d 823 (1968); Southern Pac. Land Co. v. United States, 367 F.2d 161, 162 n. 1 (9th Cir. 1966), ... of the division of squares and lots made between the public and the original proprietors and all plats, papers, books, ...Salinas City, 93 Cal. 43, 28 P. 839, 840-841 (1892); Byam v. Kansas City Pub. Serv. Co., 328 Mo. 813, 41 S.W.2d 945, ......
  • Byam v. Kansas City Public Service Co.
    • United States
    • United States State Supreme Court of Missouri
    • 5 Septiembre 1931
  • Denny v. Raymond, 38455.
    • United States
    • United States State Supreme Court of Missouri
    • 6 Marzo 1944
    ......Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W. (2d) 1; Bouligny v. Metropolitan ...(2d) 86; Simpson Advertising Service Co. v. Manufacturers & Merchants Assn. of St. Louis, 330 ...13, 283 S.W. 51, and Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W. (2d) 920) the "wrongful ...[Byam" v. Public Service Co., 328 Mo. 813, 826, 41 S.W. 2d 945.]. \xC2"......
  • Atherton v. Kansas City Power & Light Co., 39874.
    • United States
    • United States State Supreme Court of Missouri
    • 12 Mayo 1947
    ......App. 1025, 161 S.W. (2d) 707; State ex rel. Missouri Public Utilities Co. v. Cox, 298 Mo. 427, 250 S.W. 551. (4) Evidence of past ... a "disconnect" it could cause an "outage" or an interruption of service to the customer and to all other users on that "series." Defendant ... many Missouri cases along with cases from other states; for instance, Byam v. Kansas City Pub. Serv. Co., 328 Mo. 813, 826, 41 S.W. 2d 945, 952[15]. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT