Nigro v. Ashley
| Decision Date | 26 December 1984 |
| Docket Number | No. WD,WD |
| Citation | 690 S.W.2d 410 |
| Parties | Richard Samuel NIGRO, et al., Plaintiffs-Appellants, v. James G. ASHLEY, et al., Kansas City Area Transportation Authority, Defendants-Respondents. 35265. |
| Court | Missouri Court of Appeals |
Thomas Sullivan (argued), Tom J. Helms, Eldon J. Shields, L.D. McDonald, Jr., Kansas City, for plaintiffs-appellants.
L.R. Magee, Kansas City, for respondents Ashley.
James G. Lindquist, Kansas City, for A.C.A.T.A.
Walter J. O'Toole, Jr., Kansas City, for City of Kansas City, Mo.
Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
The plaintiffs, partners, doing business as Gregory McGee Company, appeal from a circuit court grant of summary judgment in favor of defendants. The order states that plaintiffs, as a matter of law, have no interest in a tract of land, which is a segment of what is known as the Country Club right-of-way because the parties' common predecessors in title conveyed fee simple title to the disputed tract to defendants' predecessor in title, the Kansas City and Westport Belt Railway. We affirm.
The undisputed facts needed to reach a decision are as follows:
The parties in this case claim title to a tract of land in Kansas City which is a segment of what is commonly known as the Country Club right-of-way. The disputed area, marked "Tract 2" is shown in the following illustration submitted by the parties. The plaintiffs are the undisputed owners of the adjacent and abutting property marked "Tract 1" in the illustration.
In October, 1981, plaintiffs filed their first amended petition for a declaratory judgment. They alleged that the defendants, James G. Ashley, Jr., and Pamela C. Ashley, had attempted to convey to the defendant City of Kansas City and the Kansas City Area Transportation Authority (A.T.A.) the Ashleys' interest in Tract 2, that the Ashleys' had no more than a railroad right-of-way easement that had been abandoned prior to the conveyance and thereby extinguished. Plaintiffs claimed to hold fee simple title to the property and asked that the circuit court declare that plaintiffs' property is free of the easement. The defendant City of Kansas City filed a counterclaim seeking a declaration that it holds the fee simple title to Tract 2 or that it is the holder of a railroad right-of-way easement in the tract.
The history of this case begins in the early twentieth century. The subject property was then owned by three different title holders. Those owners conveyed to plaintiffs' predecessors in title the undisputed ownership of Tract 1. They also conveyed to Kansas City and Westport Belt Railway Co., the defendants' alleged predecessor in title, the interest in Tract 2 now claimed by these defendants. Belt Railway was a standard gauge railroad organized under the applicable corporation statutes of 1889. The resolution of this appeal turns on deciding what was conveyed to the Belt Railway by the early owners of the tract. If we find that the Belt Railway received the fee simple title to Tract 2, that ends the case, because the basis of plaintiffs' claim is that a mere easement which has now been abandoned was granted to the company.
Belt Railway acquired its interest by means of three deeds. On April 16, 1907, by a warranty deed Southwestern Loan and Land Company conveyed to Belt Railway its interest in Tract 2, labeled in our illustration as "corp. warranty deed." The deed states in pertinent part as follows:
CORPORATION WARRANTY DEED
THIS INDENTURE, Made on the Sixteenth day of April One Thousand Nine Hundred and seven by and between Southwestern Loan and Land Company of Missouri a corporation duly organized and existing under the laws of the State of Missouri, of the County of Jackson State of Missouri, party of the first part, and Kansas City & Westport Belt Railway Company of the County of Jackson, State of Missouri, party of the second part.
Witnesseth, That said party of the first part, in consideration of the sum of Three Hundred twenty ($320.00) DOLLARS, to it in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, does by these presents, GRANT, BARGAIN AND SELL, CONVEY AND CONFIRM, unto the said party of the second part, its successors and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the County of Jackson and State of Missouri, to wit:
....
To have and to hold, The premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in any wise appertaining, unto the said party of the second part and unto its successors and assigns forever, the said Southwestern Loan and Land Company of Missouri hereby convenanting that is lawfully seized of and indefeasible estate in fee in the premises herein conveyed; that it has good right to convey the same; that the said premises are free and clear from any encumbrance done or suffered by it or those under whom it claims; and that said Southwestern Loan and Land Company of Missouri....
The second portion of the Tract 2, marked "Deed 765409" on our illustration, was conveyed by Dierks and Sons Lumber Company. The relevant portions of that deed state as follows:
THIS INDENTURE, Made on the 12th day of May A.D. One Thousand Nine Hundred and ten by and between the Dierks & Sons Lumber Company a corporation Witnesseth: That the said party of the first part, in consideration of the sum of One thousand seven hundred eithty one & 30/100 DOLLARS, to it paid by the said party of the second part, the receipt of which is hereby acknowledged, does by these presents, Grant, bargain and sell unto the said party of the second part, its successors and assigns, the following described Lots, Tracts or Parcels of Land, lying, being and situate in the County of Jackson and State of Missouri to-wit:
duly organized under the laws of the State of Missouri, party of the first part and Kansas City and Westport Belt Railway Company, a corporation duly organized under the laws of the State of Missouri ...
....
To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining, unto the said party of the second part and unto its successors and assigns forever
....
The third conveyance, marked as "Deed 765410", was by a general warranty deed of grantors Louis and Ethyl Hector. The relevant segments provide that:
GENERAL WARRANTY DEED
THIS INDENTURE, Made on the 12 day of May A.D. 1910, by and between Louis Hector, and Ethyl Hector his wife of the County of Jackson in the State of Missouri parties of the first part, and Kansas City and Westport Belt Railway Company, a corporation duly organized under the laws of Missouri ...
Witnesseth, That the parties of the first part, in consideration of One thousand and ninety nine & 96/100 Dollars, to them paid by the said party of the second part the receipt of which is hereby acknowledged, do by these presents, grant, bargain, sell, convey and warrant unto the said party of the second part, and to its successors and assigns forever the following described lots, tracts or parcels of land situated in the county of Jackson in the State of Missouri to-wit:
....
The chain of title after these initial grants is unclear, but to resolve this dispute, we need not attempt to untangle the twisted chain.
The parties do not dispute that the same three grantors were also plaintiffs' predecessors in title to Tract 1. Copies of the deeds in plaintiffs' chain of title are not in the record. Their claim of title to Tract 1 is set forth in an affidavit which refers to the various conveyances leading to the present holders. The record does show that Southwestern Loan and Land Company's deed to plaintiffs' predecessor, James G. White, conveyed an area encompassing parts of both tracts except the railroad right-of-way earlier granted to the railroad. Plaintiffs' claim rests upon their contention that the common grantors conveyed the fee simple title of Tract 2 to their predecessors, burdened with Belt Railway's easement. Without copies of those deeds shown in the record, we cannot say exactly what was conveyed to plaintiffs' predecessors by these early grantors, so our decision must rest solely on the deeds to defendants' predecessors.
In April, 1983, A.T.A. filed its motion for summary judgment. The City later filed a similar motion for summary judgment, incorporating by reference the allegations set forth in A.T.A.'s motion. A.T.A. alleged that the Ashleys had conveyed their fee simple interest to the Authority, and the City stated that it holds an option to acquire the disputed tract. On June 22, 1983, the parties' motions were sustained by the trial court without benefit of a hearing. That judgment failed to dispose of the City's counterclaim, and the Ashleys had not joined in the motions. Plaintiffs filed a motion for reconsideration of the order and to set aside the judgment. A.T.A. then dismissed its counterclaim, and later the Ashleys joined in the motions for summary judgment.
Plaintiffs then amended their motion for reconsideration adding that newly discovered evidence of a prior case, Kansas City v. Ashley, 406 S.W.2d 584 (Mo.1966), should be considered by the circuit court. The plaintiffs asserted that the above case holds that the Ashleys have only a railroad right-of-way easement and is thereby res judicata in the case at hand. Plaintiffs also submitted additional evidence of statements and letters made by attorneys for the City and A.T.A. during the course of...
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