Pacific R.R. Co. v. Seely

Citation45 Mo. 212
PartiesTHE PACIFIC RAILROAD COMPANY, Plaintiff in Error, v. JOHN S. SEELY et al., Defendants in Error.
Decision Date31 January 1870
CourtUnited States State Supreme Court of Missouri

Error to First District Court.

Whittelsey, for plaintiff in error.

I. The contract between the parties to the instrument for the depot ground and reservoir was a valid contract, and has not been complied with. (Sess. Acts 1849, p. 219, §§ 7, 8, 10; Sess. Acts 1851, p. 268, § 9; R. C. 1855, § 1, subd. 4, §§ 13-22, 27, 29, subds. 2, 3.)

II. The Pacific railroad had authority to locate its stations where it deemed best for itself, and to contract for such location. Railroads are private corporations for private profit. (Bissell v. M. S. & N. I. R.R., 22 N. Y. 258, 287; Sess. Acts 1849, charter, §§ 7, 8, 13; 1 Redf. on Railw. 53, 54, notes 6, 7; Taylor v. Cedar Rapids & St. P. R.R., 25 Iowa, 371; Chapman v. Mad River R.R. et al., 6 Ohio St. 119.)

III. The company had the power to contract for the lands, both at common law and under the statutes. (Ang. & A. on Corp. §§ 145, 151, 110, 153; Bank v. Niles, 1 Doug., Mich., 401, 403; Page v. Heineberg, 40 Verm. 81; 2 Blackst. Com. 475; 2 Kent's Com. 27, 77.) The agreement was not void on grounds of public policy. (Racine County Bank v. Ayers, 12 Wis. 512; Cumberland Valley R.R. v. Baal, 9 Watts, Penn., 458.) Subscriptions on condition of locating lines or stations are valid, deciding against the New York cases. (Pierce, Am. R.R. L., 70, 71; Chamberlain v. Painesville, etc., R.R., 15 Ohio St. 225, 247, affirming 6 Ohio St. 119; Ashtabula & N. L. R.R. v. Smith, 15 Ohio St. 328; Henderson & N. R.R. v. Leavell, 16 B. Monr. 358, 364; McMillan v. Maysville & S. RR., 15 B. Monr. 218; Carlisle v. Terre Haute & Ind. R.R., 6 Ind. 316; Fisher v. Evansville & I. R.R., 7 Ind. 407; Troy & G. R.R. v. Newton, 1 Gray, 544; N. H. C. R.R. v. Johnson, 10 Foster, N. H., 390, 401; North Mo. R.R. v. Winkle, 29 Mo. 318; Miller v. Pittsburg, etc., R.R., 40 Penn. 237; O'Neal v. King, 3 Jones, N. C., 517; Kennett v. Plummer, 28 Mo. 142; State v. Hann. & St. Jo. R.R., 37 Mo. 265; 10 U. S. Stat. 802; Sess. Acts 1852-3, p. 10, § 5; R. C. 1855, p. 425, § 29, e, d, 2 and 3; State v. Bailey, 16 Ind. 46; Junction R.R. Co. v. Reeve, 15 Ind. 236; Taylor v. Cedar Rapids & St. P. R.R., 25 Iowa, 371; Chapman v. Mad River, etc., R.R., 6 Ohio St. 119.)

Draffin & Muir, for defendants in error.

I. The contract sued on is void, as being against public policy. (Fuller v. Dame, 18 Pick. 479; Gray v. Hook, 4 Comst. 456; Davison v. Seymour, 1 Bosw. 89; Rose v. Truax, 21 Barb. 361, 372, 374.)

II. The plaintiff, under its charter, has no power to engage in town speculations; no power to purchase lands for villages and towns, either to rent or sell. (Act of Incorporation, 1849, p. 219, §§ 1, 7, 20, and amendatory act, 1851, § 9, p. 272; R. C. 1855, § 1, 4th subd., p. 406, vol. 1; authorities hereafter cited.)

III. The petition is multifarious. (40 Mo. 482; 26 Mo. 72.)

IV. As the suit is founded on a written contract, the same should have been filed with the petition. (Gen. Stat. 1865, ch. 165, § 50; Dyer v. Murdock, 38 Mo. 226.)

WAGNER, Judge, delivered the opinion of the court.

This was a suit instituted in the Circuit Court of Moniteau county, praying for a specific performance. It appears from the record that one William T. Seely, in his lifetime and on the 21st day of December, 1857, made and executed a contract in writing with plaintiff, which contained an obligation that, in consideration that plaintiff would locate a freight and passenger station on the land of said Seely, he would, in addition to the land already given, convey to the railroad, whenever called upon, four acres of land, for freight and passenger stations.

He further agreed, by said contract, to lay off into town lots one hundred and sixty acres, in such manner as the engineer of the plaintiff might direct, and make a deed to an undivided fourth part thereof to such persons as the directors of the plaintiff should designate. Seely made a plat of the town, showing the streets and alleys and railroad grounds, and placed the same on the records of the county. Afterward, in the year 1863, Seely died, and the plaintiff, in 1868, commenced this suit against his heirs and administrators. The petition averred that plaintiff had fully complied on its part with all the acts which constituted the consideration.

To this petition the defendant interposed a demurrer, and assigned the following grounds of objection: 1st. Because the petition does not state facts sufficient in law to constitute a cause of action, in this: the corporation or plaintiff, in the construction of the road and in the location of its depots and passenger stations, acted in the capacity of commissioners representing, in part, the community or public, and could not by contract, bind itself to locate a depot at any particular place. Such an agreement is against public policy and nudum pactum, and can not be enforced. 2d. Because the plaintiff had no power under its charter to make the contract sued on; it would have no right to engage in town speculations in the purchase of lands and holding them for villages and towns, either to rent or sell. The contract is therefore void. The third ground taken by the demurrer was that the petition was multifarious, and the fourth objection was that the written contract was not filed with the petition. The demurrer was sustained in the Circuit Court, and no answer being filed, judgment absolute was rendered in favor of the defendants. This judgment was affirmed in the District Court, and the case is here for revision on error.

The first two assignments set forth in the demurrer constitute the essential merits of the case, and will be alone considered. There are certain contracts which corporations can not make, which it would be perfectly competent for individuals to execute. The charter of corporations constitutes the chart of their authority, and they have no powers except such as are expressly granted, and such as are auxiliary or necessary to carry out and subserve the object of their creation.

The act incorporating the Pacific railroad defines its powers and specifies the objects for which it was created. The seventh section of the act incorporating the company provides that said company shall have full power to survey, mark, locate, and construct a railroad from the city of St. Louis to the city of Jefferson, and thence to some point in the western line of Van Buren county (afterwards changed to Cass county), in this State, with a view that the same may be hereafter continued westwardly to the Pacific Ocean; and for that purpose may hold a strip of land not exceeding one hundred feet wide, and may also hold sufficient land for the construction of depots, warehouses, and water stations; and may select such route as may be deemed most advantageous, and may extend branch railroads to any point in any of the counties in which said road may be located. (Sess Acts 1849, p. 220, § 7.)

In 1851, section 7, supra, was amended so as to give the company authority to locate and construct the road on any route which it might deem most advantageous, to any point on the western line of this State which it might select; and the power was also conferred to hold a strip of land not exceeding one hundred feet wide, except where it was necessary for turn-cuts, embankments, or excavations; in which case it was authorized to hold a sufficient width for the preservation of the road; and it was further empowered to hold sufficient land for the erection and maintenance of depots, landing places or wharves, engine houses, offices, machine shops, warehouses, and wood and water stations. (Sess. Acts 1851, p. 272, § 10.) Section 20 of the original charter declares that the operations of the company shall be confined to the general business of locating, constructing, managing, and using said railroad, and the acts proper to carry the same into complete and successful operation.

The above sections designate the general objects of the road, and comprise its whole power in relation to obtaining and holding real estate. In regard to the first question presented by the record, there have been differences of opinion in the courts, and the authorities are admittedly diverse. The case of Taylor v. Cedar Rapids, etc., R.R. Co., 25 Iowa, 371, so strongly relied upon by the counsel for the plaintiff in error to show that a contract for the location of a depot or station-house at a particular place is valid, is hardly an authority for the position he assumes. There the grantor had conveyed the right of way to a railroad company upon the condition that the depot of the company should be located within a certain distance of a particular place. The grantor did not surrender the land, and the railroad failed to comply with the stipulations, and located the depot at another and different place. The court held that a breach of the condition defeated the estate conveyed by deed, and that the vendor, not having surrendered the possession of the land, might enforce the forfeiture and have his damages for the right of way assessed as though no deed had ever been made. No question was raised as to whether the deed was valid or invalid on the grounds of public policy. The grantor was the only person who could have raised that question, and he did not seek to avail himself of it. He had willngly parted with his estate upon an agreed condition, and when the other party violated the condition the court said that he was entitled to damages for his right of way.

Many cases have been cited to show that subscriptions of stock to railway companies, conditional on the location of the line or station, would be upheld. Although this is denied by the courts in New York, yet it is the general doctrine. (Racine County Bank v. Ayers, 12 Wis. 512; McMillen v. Maysville & Lexington R.R. Co., 15 B. Monr. 218; Henderson, etc., v. Leavell, 16 B. Monr. 358; Carlisle v....

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