Alexander v. Kansas City, Ft. Scott & Memphis R. R. Co.
| Decision Date | 03 April 1897 |
| Citation | 40 S.W. 104,138 Mo. 464 |
| Parties | Alexander v. Kansas City, Ft. Scott & Memphis R. R. Co., Appellant |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court.
Reversed.
Wallace Pratt, Olden & Orr, and I. P. Dana for appellant.
(1) As between plaintiff and defendant, the latter made the first lawful entry upon the land in question and obtained the first right thereto, and has held it continuously since. This is so whether defendant's rights rest upon the transfer from the homesteader Simpson, or upon a compliance with the act of Congress of March 3, 1875. R. S. U. S. 1878, sec. 2288, 2290 2291; Sup. to same, p. 187; Kinion v. Railroad, 118 Mo. 582; Hargis v. Railroad, 100 Id. 210; Railroad v. Osborne, 21 P. 421; Wright v Gish, 94 Mo. 110; Railroad v. Peronto, 10 A. & E. R. R. Cases, 670; Cahalan v. McTague, 46 F. 251; Railroad v. Gordon, 41 Mich. 420. (2) Plaintiff made his homestead entry on the half quarter section of land with the railroad on it; knowing it was there and knowing, or with the means and power of learning, just how and what defendant's claim and rights were, he therefore took the land subject to the railroad right of way. Hargis v Railroad, 100 Mo. 210; Shumate v. Reavis, 49 Id. 336; Fellows v. Wise, 55 Id. 413; Reilly v. Railroad, 94 Id. 608; Eyerman v. Bank, 84 Id. 408; Kanaga v. Railroad, 76 Id. 213; Hughes v. U.S. 4 Wall. 232; Gray v. Railroad, 81 Mo. 134; Bradley v. Railroad, 91 Id. 499; Dodd v. Railroad, 108 Id. 581.
James Orchard for respondent.
This is an action of ejectment in statutory form for the west half of the northwest quarter of section 21, township 26, range 9, in Howell county, Missouri. Ouster was laid on May 6, 1886. Action commenced October 9, 1891.
The answer admitted possession of a strip one hundred feet wide over and across said land amounting to four and sixty-five hundredths acres, and disclaimed ownership and possession of the remainder of said lands. It then proceeded to aver that in May, 1881, its predecessor the Kansas City, Springfield & Memphis Railroad Company under and by virtue of its charter and the act of Congress of March 3, 1875, granting right of way for railroads, entered upon and took possession of said strip of land, surveyed, located and constructed its railroad thereon, and filed its map showing such definite location as was required by said act of Congress, which map was approved June 17, 1882; that said predecessor company continuously owned and operated said railroad and remained in possession of said strip until April, 1888, when by consolidation it was merged in the defendant company, to which all of its property and franchises were duly transferred, and that the latter company had ever since continued such occupation, ownership and operation.
The answer also pleaded an equitable estoppel against the maintenance by plaintiff of the action of ejectment for said strip of land, and set forth the facts on which this defense was based. The answer also contained a general denial of the allegations of the petition not specifically admitted.
The reply was a general denial, and the case was tried without a jury.
The testimony and admissions of the parties showed the following state of facts:
Prior to April, 1881, the Kansas City, Springfield & Memphis Railroad Company was duly incorporated under the laws of Missouri, its charter authorizing it to construct a railroad from Springfield in a southeasterly direction to the Arkansas line in Linn township, Oregon county, all in Missouri. In April and May, 1881, the company made a preliminary survey for the road through and across the land described in the petition (the west half of the northwest quarter of section 21, township 26, north, range 9, west), and made a definite location of the line through said land in August, 1881, when the right of way was staked out to the width of one hundred feet through this and other lands. The railroad company went on at once, and continuously thereafter, to construct the railroad, and it was completed through said land during that fall and winter, so that in January, 1882, trains were running to West Plains.
The railroad company, in compliance with the terms of the act of Congress of March 3, 1875, granting right of way through public lands to railroads, filed its articles of incorporation with, and the same were approved by, the Secretary of the Interior on February 15, 1882, and its map of definite location crossing the lands sued for was approved June 17, 1882, but this land was not described on said map as being vacant.
At the time this survey was made across said land one C. W. Simpson was living upon it and an adjoining eighty acre tract, having, by entry dated December 17, 1877, homesteaded said west half of the quarter section above described, and also the southeast quarter of the southeast quarter of section 17, and the northeast quarter of the northeast quarter of section 20, in the same township and range. The railroad was surveyed and constructed across this land with the knowledge and consent of Simpson, who was paid by the railroad company for the right of way, and gave it a deed for a portion thereof. Subsequently, but just when the evidence does not show, Simpson left the land which he had homesteaded, the plaintiff Alexander having, as the latter states, bought Simpson's claim, and in March, 1884, Simpson's homestead entry was formally canceled in the United States land office.
In September, 1881, plaintiff Alexander went to live with Simpson on the land homesteaded by the latter, and continued there -- part of the time with Simpson, and by himself after the latter had left the land -- working from time to time on the construction of the railroad, both before and after moving upon the land. After Simpson's homestead entry was canceled in March, 1884, plaintiff Alexander himself made a homestead entry of the same one hundred and sixty acres of land.
Alexander, the plaintiff, did not testify in his own behalf, but was put upon the stand by the defendant. He testified that the railroad was being constructed when he went on the land and was completed while he lived there -- he thought in 1881, although he worked on the road afterward; Simpson then lived on the land, and he, Alexander, bought the former's claim; that he had lived on the land ever since, having made a homestead entry thereof in March, 1884, and final proof in November, 1889, and afterward obtained a patent; that he had notified the railroad company two or three times to fence its right of way through his land, but the fence had not yet been built; that at his request the company had put in a crossing in the tracks in front of his house for his convenience. He further said:
The Kansas City, Springfield & Memphis Railroad Company maintained and operated the railroad so constructed by it over said land continuously from 1881 until April, 1888, when it transferred to the defendant company, appellant herein, all its rights, privileges, and franchises, and the defendant succeeded to all the rights, privileges, property, and franchises of the first named company, and has ever since maintained and operated said railroad through said land, as a part of its line of road. About $ 10,000 per mile was expended in building the road, and the defendant and its predecessor has constantly ever since the original construction maintained and operated the same.
There was some evidence introduced by the plaintiff over defendant's objection, on the subject of the value of the land used for right of way, but as the judgment did not include any allowance for rents, profits or occupation, the error was harmless. A plat showing the location of the railroad across this land homesteaded by Simpson and afterward by Alexander, was introduced in evidence.
The plaintiff asked no declaration of law; the court refused each of those asked by the defendant and gave none itself.
On these pleadings and this evidence the court found that plaintiff was entitled to the immediate possession of the strip of land one hundred feet wide occupied by defendant for right of way for its railroad over and across the land described in the petition; that defendant was wrongfully in possession of such land, and that plaintiff should have restitution thereof; and judgment was entered accordingly. Motions for a new trial and in arrest were duly filed and overruled, and defendant perfected its appeal to this court.
1. While the facts of this case somewhat resemble those shown in Kinion v. Railroad, 118 Mo. 577, 24 S.W. 636, they differ greatly in some essential points. In that case Kinion entered upon the land in February, 1881, prior to the making of the preliminary survey by the railroad company in April 1881, and made his homestead entry in January, 1882, before the...
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