Allen v. Beasley

• Citation: 297 Mo. 544,249 S.W. 387
• Decision Date: 05 March 1923
• Docket Number: No. 23268.,23268.
• Parties: ALLEN v. BEASLEY.
• Court: United States State Supreme Court of Missouri

249 S.W. 387

297 Mo. 544

ALLEN v. BEASLEY.

No. 23268.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Action by George Allen against Joe Beasley. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Henry C. Riley, Jr., of New Madrid, for appellant.

Geo. H. Traylor, of New Madrid, for respondent.

Statement.

WOODSON, J.

This is an ejectment suit, brought by the plaintiff for the possession of the south half of lot 2 in black 10, John E. Powell's Fourth addition to the city of New Madrid, Mo., and for damages and monthly rents and profits. This, case was submitted to the court upon the following agreed statement of facts, to wit:

"It is hereby agreed and stipulated by and between the parties to this action by their respective attorneys, Henry C. Riley, Jr., attorney for plaintiff, and George H. Traylor, attorney for defendant, that this cause shall be submitted to and determined by the court upon the following facts:

"That on December 21, 1908, one Emma Lesieur was the owner of the land described in plaintiff's petition, to wit: South half of lot 2 in block 10, John E. Powell's Fourth addition to the city of New Madrid, Missouri, situated in New Madrid county, Missouri, and that on said day for a valuable consideration the said Emma Lesieur conveyed by warranty deed said lot to the plaintiff herein. That said deed was duly acknowledged and filed for record the same day as executed, and recorded in the land records of New Madrid county, Missouri.

"That afterwards, on January 3, 1912, the plaintiff, George Allen, and wife by a warranty deed duly Acknowledged, filed for record the same day as executed, conveyed said land described in the petition to the St. Louis & Missouri Southern Railroad Company, a corporation, and that no reservation was made in said deed as to the use to which said land was to be put by said grantee. That afterwards, on the ____ day of ____, 1916, one M. J. Conran was duly appointed receiver of said Missouri Southern Railroad Company by the circuit court of New Madrid county, Missouri. That said Conran qualified as such, took charge of said road and all its property, and fully discharged his duties as such and was on the — day of September, 1918, finally discharged as such.

"That on January 2, 1918, an order of sale was made by the judge of the circuit court aforesaid in vacation, authorizing said receiver to sell the property `of said St. Louis & Missouri Southern Railroad Company. That thereafter, on February 5, 1918, said receiver made a report to said court of said sale made under said order, and on the same day said report was in all things approved by said court. That on February 7, 1918, said Conran, as receiver under said order of sale aforesaid, by his deed as such conveyed said land to Joseph Greenspon & Sons Iron & Steel Company. That said deed was duly filed for record on said day and recorded in the land records of New Madrid county, Missouri.

"That thereafter said Joseph Greenspon & Sons Iron & Steel Company by its quitclaim deed conveyed said land to Thomas Gallivan; that said deed was duly filed for record and recorded in the land records of New Madrid county, Missouri; and that thereafter, and before the filing of this suit, the said Thomas Gallivan and wife, by their quitclaim deed conveyed said land to one George V. Montague, and that said deed was duly recorded in the land records of New Madrid county, Missouri. That the defendant, Joe Beasley, was in possession of the premises at the institution of this action, and still holds possession of the same as the tenant of George V. Montague, the grantee in the above-mentioned deed.

"That the Public Service Commission of the state of Missouri by its order of record, made on the 25th day of February, 1918, authorized the said Joseph Greenspon & Sons Iron & Steel Company to abandon the operation of said railroad and to remove the tracks, rails, and equipment of all kinds from the right of way of said railroad company. That immediately upon receipt of said order aforesaid said operation of said railroad was stopped, the tracks, rails, and equipment of all kinds were removed from said right of way, and that the said railroad has not since been operated as such. That all of said property was removed, and the same, the railroad, abandoned.

"It is further agreed that if the court finds for the plaintiff it may assess plaintiff's damages at the sum of one cent,, and the monthly value of the rents and profits of said premises is one cent."

Opinion.

I. The agreed statement of facts shows that George V. Montague was the record owner of this property at the time the snit 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 being made a party. That contention is unquestionably true, but that has nothing to do with the 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 a 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 affirmative of the proposition and the respondent to the negative. Clause 2 of section 9850, R. S. 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. 500, 11 Am. Rep. 426, used the following language:

"That a fee simple may be taken and acquired through the exercise of the power of eminent domain may be conceded. But that, I apprehend, would be where an absolute and unconditional price was paid for the property. In determining the consideration to be paid by these roads for the right of way, the benefits and advantages accruing to the owner are taken into the calculation. The benefits and advantages, then, are considered as forming part of the purchase money. But suppose the road, after it is started, ceases to exist, and its operation is abandoned; will the land revert back to the owner, or may the road keep and dispose of it for a purpose entirely different from that had in view when it was commenced? It seems to me there can be but one answer to this question. There might be cases where the commissioners and the court would not award the proprietor anything more than nominal damages, believing that the benefits would be greater than the value of the land; and in such a case, if the road should cease or be abandoned, the owner would be deprived of his estate without any compensation. In the matter of highways, where lands have been taken and appropriated in this way, it has never been held that anything more than an easement passed by the condemnation and the payment of the amount of damages assessed. The use is vested in the public, but the reversionary title still continues in the owner of the soil. In my opinion, notwithstanding the language used, nothing more than an easement passed to the road, giving it perpetual and continuous title so long as it used the land for the purpose for which it was taken; but, when that use was abandoned, then it would revert back to the owner of the premises."

Regarding the same point this court, in the case of Chouteau v. Mo. Pac. Ry. Co., 122 Mo. 375, loc. cit. 386; 22 S. W. 458, loc. cit. 460, said:

"The like view has been announced in Minnesota as to the effect of a statute of that state which professedly authorized the acquisition of an `absolute estate in fee simple,' whereas, by the Constitution of that state, the condemning company was only authorized to acquire `a franchise of way,' and it was held that the effect of the constitutional provision was to so limit the effect of the statute as to permit the company to acquire, not the fee-simple title, but only an easement. Scott v. Railroad, 21 Minn. 322. These cases proceed on the familiar principle that what the law will imply in an express contract is as much a part and parcel of it, and as much to be dwelt on in construing it, as if stated in such contract in direct terms. Whincup v. Hughes, L. R. 6 C. P. 78; Bishop on Contr. ...