Allen v. Beasley
Decision Date | 05 March 1923 |
Citation | 249 S.W. 387,297 Mo. 544 |
Parties | GEORGE ALLEN, Appellant, v. JOE BEASLEY |
Court | Missouri Supreme Court |
Appeal from New Madrid Circuit Court. -- Hon. Sterling H. McCarty Judge.
Reversed and remanded.
Henry C. Riley, Jr., for appellant.
(1) The interest acquired by the railroad company by deed from appellant and wife was only an easement, the right to hold said land so long as used for railroad purposes. Sec. 9850 (2d Clause) R.S. 1919; Kellogg v. Malin, 50 Mo. 500; Chouteau v. Mo. Pac. Ry Co., 122 Mo. 386; State ex rel. v. Road Co., 207 Mo. 103; Boyce v. Mo. Pac Ry. Co., 168 Mo. 588; Railroad v. Sendlin, 173 Mo.App. 389; Railroad v. Tel. Co., 134 Mo. 411. (2) Ejectment is the proper remedy to recover the premises when the use is abandoned. 33 Cyc. 228; Ruddick v. St. Louis Keokuk N.W. Ry. Co., 116 Mo. 31. (3) When the railroad abandoned the premises for railroad purposes the same reverts to owner. Roanoke Inv. Co. v. Railroad Co., 108 Mo. 67; Boyce v. Mo. Pac. Ry. Co., 168 Mo. 589.
Geo. H. Traylor for respondent.
(1) The record and agreed statement of facts both show, that the record title to the lot in question, is and was at the time of the institution of this suit in one George V. Montague, that defendant herein was his tenant, and that the said Montague was not made a party defendant to this action, and as far as the record shows knew nothing of this suit. He should have been brought in as a defendant and joined as such with his tenant who was not claiming any title and could not have defended his landlord's title. The court was without jurisdiction to take a man's property without first having him in court giving him an opportunity to be heard and to defend his title. Mo. Constitution, sec. 30, art. 2; 2 Kent's Com. 13; Bertholf v. O'Reilly, 74 N.Y. 519; People ex rel. Whetherbee v. Supervisors, 70 N.Y. 228; George v. Middough, 62 Mo. 551; Roberts v. Land & Imp. Co., 126 Mo. 469; Jones v. Yore, 142 Mo. 44. If defendant held possession of the lot under Montague, as his tenant only, then Montague had a right as landlord to defend the suit. Sutton v. Cassellegi, 77 Mo. 397; Hill v. Atterbury, 88 Mo. 118. (2) Kellogg v. Malin, 50 Mo. 500. Appellant and his wife executed to the St. Louis & Missouri Southern Railroad Co., their warranty deed for full consideration to said lot, without any reservation or condition. The railroad company obtained the entire fee, by reason of the deed made, and the corporation could convey the land thus obtained, when no longer necessary for its purpose, to whomsoever it would, just as a natural person would do. Nye v. Railroad, 113 Mass. 277; Venerable v. Wabash Ry. Co., 112 Mo. 123; Chouteau v. Mo. Pac. Ry. Co., 122 Mo. 387.
This is an ejectment suit brought by the plaintiff for the possession of the south half of Lot 2 in Block 10 of John E Powell's 4th Addition to the city of New Madrid, Missouri, and for damages and monthly rents and profits.
This case was submitted to the court upon the following agreed statement of facts, to-wit:
I. The agreed statement of facts show that George V. Montague was the record owner of this property at the time the suit was instituted, and that the defendant Beasley was his tenant; the former not having been made a party to the suit, the defendant contends that the court had no jurisdiction of the case for the reason that Montague's property cannot be taken from him without his being made a party.
That contention is unquestionably true, but that has nothing to do with jurisdiction in this case, for the suit is against Beasley and he alone can be affected by the judgment, and the fact that Montague is not a party to the suit does not affect the jurisdiction of the court over Beasley and his interest, though possessory, in the property. This contention is decided in favor of the appellant.
II. The real question in this case hinges around the contention as to whether or not when a person conveys land to a railway company, as in this case, the title thereto reverts back to him when the land ceases to be used for railroad purposes.
The appellant holds to the affirmation of the proposition and the respondent to the negative. Clause 2 of Section 9850, Revised Statutes 1919, reads: "to take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railroads; but the real estate received by voluntary grant shall be held and used for the purpose of such grant only."
In discussing the question now under consideration this court in the case of Kellogg v. Malin, 50 Mo. 496, used the following language:
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