73 S.W. 453 (Mo. 1903), Southern Illinois & Missouri Bridge Co. v. Stone

Citation73 S.W. 453, 174 Mo. 1
Opinion JudgeGANTT, J.
Party NameSOUTHERN ILLINOIS & MISSOURI BRIDGE COMPANY, Appellant, v. STONE et al
AttorneyMartin L. Clardy, S. H. West, Wilson Cramer and W. H. Miller for appellant. Giboney Houck, John A. Hope and M. R. Smith for respondents.
Judge PanelGANTT, J. Robinson, C. J., Marshall, and Burgess, JJ., concur; Valliant and Brace, JJ., dissent, and express their views in a dissenting opinion by Judge Valliant; Fox, J., not having heard the argument, expresses no opinion. VALLIANT
Case DateMarch 04, 1903
CourtSupreme Court of Missouri

Page 453

73 S.W. 453 (Mo. 1903)

174 Mo. 1

SOUTHERN ILLINOIS & MISSOURI BRIDGE COMPANY, Appellant,

v.

STONE et al

Supreme Court of Missouri

March 4, 1903

Appeal from Dunklin Circuit Court. -- Hon. J. L. Fort, Judge.

Reversed and remanded (with directions).

Martin L. Clardy, S. H. West, Wilson Cramer and W. H. Miller for appellant.

(1) Had plaintiff (appellant) under the facts as they exist in this cause the right to exercise the power of eminent domain in this State? If an affirmative answer be given to this question the case must be reversed. Especially is this true as the trial court based its finding alone on the non-existence of this power. Section 1352, Revised Statutes 1899, confers on domestic bridge companies the right to condemn for bridge purposes. The appellant is not a domestic corporation, but it complied with section 1025, Revised Statutes 1899, and received its license to do business in this State. It can not do business in this State without an approach to its bridge. Section 1024, Revised Statutes 1899, relating to foreign corporations, among other provisions, contains the following: "And such corporation shall be subjected to all the liabilities, restrictions and duties which are or may be imposed upon corporations of like character organized under the general laws of this State, and shall have no other or greater powers." Appellant contends that by saying "it shall have no other or greater powers," is but another way of saying it shall have the same powers. A domestic bridge company may condemn. The right of eminent domain is one of its powers. When the foreign corporation complies with the Missouri statute it becomes, ipso facto, a domestic corporation, and its powers are only restricted by the term "no greater," etc. If, on this proposition, authorities other than the statute are wanted, fortunately they are readily found. The language hereinbefore quoted from the Missouri statute is a literal copy of the Illinois statute on the same subject, and presumably the construction placed on this statute by the Illinois Supreme Court will be of controlling weight in Missouri in the absence of a different construction by our own court. Sec. 26, Illinois Corporation Act, adopted in 1872; Female Academy v. Sullivan, 116 Ill. 375; Farmers' Loan & Trust Co. v. Railroad, 173 Ill. 439; Barnes v. Suddard, 117 Ill. 237; Stevens v. Pratt, 101 Ill. 217. This court, in Gray v. Railroad, 81 Mo. 126, and in Railroad v. Lewright, 113 Mo. 660, held that, under section 1060, Revised Statutes 1899, relating to foreign corporations, foreign railroad corporations had the right to condemn land for right of way in this State. Bridge Company v. Ring, 58 Mo. 494; and Bridge Company v. Schaubacker, 49 Mo. 555, are at least two cases in Missouri where the right to condemn for approaches to bridges across the Mississippi river was distinctly recognized. It does not appear from the decisions whether these bridge companies were domestic or foreign corporations. The act of Congress, under authority of which this appellant is acting, distinctly declares it to be a "public highway," etc., and "shall be recognized and known as a post route," etc. In Leasee v. Railroad, 72 Mo. 561, this court says: "The right of eminent domain may be exercised by any artificial person clothed with a franchise, the enjoyment of which promotes a public use," etc. In the light of the foregoing authorities the conclusion is irresistible that this appellant has the same power that it would have had had it been incorporated under the laws of the State of Missouri, and therefore has the right to condemn real estate for its approach. (2) It is conceded that defendants were the record owners of the property sought to be condemned at the time of filing the petition. This was sufficient. Sec. 1264, R. S. 1899; Chatner v. Railroad, 122 Mo. 387. (3) Whether properly or improperly, it is made to appear in this case that there is a rival corporation after the identical land for the purpose of building the approach to appellant's bridge. This rival company was incorporated April 24, 1902. The land in question had been surveyed and this approach located on it in February and March, and in the language of one of the conspirators, Louis B. Houck, was bristling with stakes, numbers, etc. In this condition of affairs priority in time gives priority in right. Lewis on Eminent Domain, sec. 306; Railroad v. Blair, 9 N.J.Eq. 635; Railroad v. Railroad, 105 Pa. 13; Davis v. Railroad, 114 Pa. 308; Railroad v. Alling, 99 U.S. 463; Railroad v. Railroad, 44 Hun 206; Railroad v. Railroad, 110 N.Y. 128; 17 N.E. 680; Railroad v. Railroad, 159 Pa. 331, 28 A. 155; Railroad v. Railroad, 61 Vt. 1; 17 A. 923; Railroad v. Railroad, 43 W.Va. 119; 30 S.E. 86. (4) The right of appeal seems to be our only remedy. Railroad v. Neville, 110 Mo. 349; State ex rel. v. Shelton, 154 Mo. 691.

Giboney Houck, John A. Hope and M. R. Smith for respondents.

(1) The statute requires the owner to be sued in condemnation cases. R. S. 1899, sec. 1264. (a) The word "owner" as used in the statute must mean any one who holds the property in a bona fide way and is entitled to the use thereto or enjoyment of whatever it may produce in the way of rents and profits. It does not mean a technical legal right to hold, or, more correctly speaking, it embraces the actual equitable right and title to the property. In Owen v. Railroad, 12 Wash. 318, the court said: "The appellant had actual notice of the title and claim of the respondents, and that being the case, appellant can not rely upon the lack of constructive notice provided by statute." Lewis on Eminent Domain, p. 784, note; Bouvier's Law Dictionary, title, "Owner;" Wilder v. Harghey, 21 Minn. 101; Smith v. Ferris, 13 N.Y. 553. (b) The law is well settled in Missouri that if a party purchase land of another with knowledge of an unrecorded deed outstanding to a third party made by the one from whom he purchases, he takes with full notice of that deed, and necessarily acquires no title. Fox v. Hall, 74 Mo. 315. (c) From the testimony of Koslowsky and the evidence offered by defendants, it must be conceded that plaintiff company had knowledge of the option held by Crowder. This knowledge was notice, and the bringing of the suit to condemn against the defendants only, and without joining Crowder, was not in good faith, and not within the true interpretation of the statute. Vance v. Corrigan, 78 Mo. 94; Payne v. Lett, 90 Mo. 676; Nolan v. Taylor, 131 Mo. 224; Schleff v. Imp. Co., 57 N.H. 110; Pinkerton v. Railroad, 109 Mass. 527; Fulton Co. v. Amorans, 89 Ga. 614. (2) Although the appellant bridge company may have in Illinois, the State of its creation, the power to condemn property for its bridge and approaches, yet, it has no such power in this State unless conferred upon it by some law of the State. President v. Trenton Bridge Co., 13 N.J.Eq. 50; Clark & Marshall on Private Corp., sec. 854, p. 2734; Attorney-General v. Railroad, 27 N.J.Eq. 647; Railroad v. Mutchler, 42 N. J. L. 461; 4 Am. and Eng. Ency. Law (2 Ed.), p. 930, par. 3 and notes; Middle Bridge Corp. v. Marks, 26 Me. 326; Luxton v. North River Bridge, 153 U.S. 530; State v. Railroad, 25 Ver. 441; Crosby v. Hanover, 36 N.H. 422; Saunders v. Bluefield Waterworks Co., 58 F. 138; 1 Lewis on Em. Dom., 588; 13 Am. and Eng. Ency. Law (2 Ed.), p. 858, par. 7; Railroad v. Young, 33 Pa. St. 180. (3) Respondents say that appellant, under the pleadings and proof, has no power to condemn property in this State for any purpose, not even for its bridge and approaches. Bridge Co. v. Kentucky, 154 U.S. 219; Const., art. 12, sec. 14; R. S. 1899, sec.1127. Foreign railway companies and foreign bridge companies do not stand on the same plane in Missouri. R. S. 1899, sec. 1060; Mills on Em. Dom., sec. 48; 1 Lewis on Em. Dom., secs. 237, 238 and 240; Bridge & Tramway Co. v. McLane, 8 Tex. Civ. App. 665. The courts of Missouri will not take judicial notice of the laws of Illinois or that the taking of property for bridge purposes is for public use, and whether the statute under which appellant bridge company was incorporated conferred upon it the power of eminent domain was a question that should have been pleaded and proved, and not having been done, the court will assume that the common law was in force in that State. Meyer v. McCabe, 73 Mo. 236; Portsmouth Livery Co. v. Watson, 10 Mass. 92. (4) Manifestly appellant bridge company has no power to condemn "a right of way for its railroad tracks . . . and terminal yards," etc., using the language of appellant's petition. Laws of Illinois, 1872, pp. 551 and 552; R. S. Illinois, 1896; R. S. 1899, sec. 1024; Const. (Mo.), art. 12, sec. 7; Railroad v. Gebhart, 109 U.S. 537; Diamond Match Co. v. Powers, 51 Mich. 145. (5) The certificate from the Secretary of State of Missouri, issued to appellant company, could only, and was but intended to, constitute a license to do business for a certain period of time. This license merely conferred on it all the rights and privileges granted foreign corporations under the laws of Missouri. 6 Com. on Law of Corp. (Thompson), secs. 7890, 7891 and 7896. (6) It is conceded by respondents that the appellant corporation, by virtue of the certificate issued to it by the Secretary of State of the State of Missouri, secured the privilege of doing business in Missouri, or the right to exercise such franchises as was conferred upon it by the laws of Illinois (except that of the right of eminent domain), which authorized it to transact its ordinary business. But it is denied that by such license it was vested with power to condemn property or regulate tolls and tariffs. R. S. 1899, sec. 1264; Holbert v. Railroad, 45 Iowa 27; 3 Clark & Marshall on Priv. Corp., p. 2734, sec. 854; 1 Lewis on Em. Dom. (2 Ed.), p. 574, sec. 243; Lyon v. Jerome, 26 Wend. 499; Railroad v. Railroad. 111 Mass. 131; State v....

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