Allen v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 31 October 1884
• Citation: 84 Mo. 646
• Parties: ALLEN, Administrator, v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

84 Mo. 646

ALLEN, Administrator,

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Clay Circuit Court.--HON. G. W. DUNN, Judge.

AFFIRMED.

D. C. Allen for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action. Clement v. Durgin, 5 Me. 9; Fuller v. Plymouth, 15 Pick. 81; Marble v. Whitney, 28 N. Y. 297; People v. Goodwin, 5 N. Y. 568; Noyes v. Chapin, 6 Wend. 461; Rio Grande R. R. v. Bounsoille, 45 Tex. 88. (2) The circuit court did not have jurisdiction of the action. Constitution, art. ii, sec. 21; High on Extraordinary Legal Remedies, sec. 318. (3) The circuit court did not properly construe the deed from Joel Turnham and wife to William H. Wymore et al., dated February 11, 1856. By it a fee passed to the grantees subject to Turnham's right to cultivate and use the strip for farming purposes only. This right, and no other, passed to Giros by the deed of February 29, 1858. There is no evidence that Joel Turnham or Joseph Giros, after February 11, 1856, and prior to the filing of the petition (February 7, 1880), ever used the reservation. The only attempt on the part of Giros to use the strip--and that was in violation of the covenant of the deed of February 11, 1856--was to store cord wood thereon during the civil war, more than eighteen years before suit was brought. Hence, the reservation had never been operative. Thompson v. Gregory, 4 Johns. Rep. 81; Provost v. Calder, 2 Wend. 517. The failure of proof of the consolidation of the St. Louis, Kansas City & Northern Railway Company with the Toledo, Wabash & Western Railway Company was fatal to a recovery by plaintiff. Giros was barred by the statute of limitations. He was also estopped to claim that he was owner in fee of the strip by the judgment in case of Higbee, administrator, against himself and wife. Bigelow on Estoppel, 269.

Samuel Hardwicke and Simrall & Sandusky for respondent.

(1) The plaintiff permitted the construction of the railroad on his land, so that he could not have maintained ejectment or trespass, but he did not waive his right to compensation. The defendant recognized his right, and at different times purchased rock from him on this land. Provolt v. C., R. I. & P. R. R. Co., 57 Mo. 256; 57 Mo. 275; Ring v. Miss. R. Bridge Co., 57 Mo. 496. (2) The circuit court had jurisdiction to try the case. In condemnation proceedings the initiative is with the railway company, and if they construct their railroad upon another's land without following the statute, the owner may pursue the usual common law remedy. R. S.1879, sec. 892, art. 6, ch. 21; Mills on Em. Domain, secs. 89, 90, p. 117 (1 Ed.), and cases cited; Blesch v. Chicago R. R., 43 Wis. 183; Atlantic R. R. v. Fuller, 48 Ga. 423; Hartz v. St. Paul R. R., 21 Minn. 358; Anderson R. R. v. Kernodle, 54 Ind. 314; Kas. Pac. R. R. v. Streeter,8 Kas. 133; Ewing v. St. Louis, 5 Wall. 413; 57 Mo. 256, 275, 496. The law does not require the owner to move for a mandamus to compel the corporation to follow the statute. Smith v. Chicago Ry., 67 Ill. 191; Shepardson v. Milwaukee R. R., 6 Wis. 605. (3) The deed from Joel Turnham to Wm. H. Wymore et al. conveyed an easement simply; Turnham still retained the fee, and subsequently conveyed it to Giros by general warranty deed, without qualification. When the railway company constructed their railroad over this land, the owner was entitled to compensation; just as the owner of ground upon which a highway is located, is entitled to compensation for a new and different public use to which the ground may be subjected. (4) The record in the case of Elisha Higbee, administrator of Joel Turnham's estate, versus Joseph Giros, simply shows that, when Giros was sued for the remaining purchase money due on the land, he set up the fact that Turnham had made him a general warranty deed; that this shipping privilege in favor of Wm. H. Wymore et al. was, at the time of the execution of the deed, an encumbrance upon the land bought by him; he asked and received, by the judgment of the court, a credit for this encumbrance. (5) The question of consolidation amounts to nothing; if the appellant was holding this land by permission of the respondent, as the jury found, and not adversely, as the jury found, then the respondent was entitled to compensation for the land, whether the appellant was a purchaser from a former road, or merely the resultant of a consolidation. (6) The jury's verdict was against the appellant on the plea of limitation, and their finding upon this question and upon all other questions of fact involved in the case is final.

DEARMOND, C.

Joseph Giros, in February, 1880, sued for $2,000 for the use by defendant and its predecessor of a strip of his land along the Missouri river, near Liberty Landing, for the bed of its railroad. In his petition he alleged that he had owned, since 1858, a certain tract of one hundred and twelve acres, describing it, and had ever since had and been entitled to the possession of said tract. That about the year 1875, and prior thereto, the St. Louis, Kansas City & Northern Railway Company and its predecessor had been occupying and using, and had continued to occupy and use said strip as a roadbed for a railroad, with his permissiom. That in 1879, said St. Louis, Kansas City & Northern Railway Company consolidated with the Toledo, Wabash & Western Railway Company, and thereby was created the defendant. That by such consolidation the defendant succeeded to all the rights and privileges, and became subject to all the obligations and liabilities of the said St. Louis, Kansas City & Northern Railway Company. That the defendant continues to occupy and use the said strip of plaintiff's land for its road bed and railroad track, and is liable to him for such use thereof by it and its predecessor. The answer is a general denial, a plea as to possession of the ten-year statute, and a plea as to the accruing of the alleged cause of action of the five-year statute. There was a trial by jury, a verdict for plaintiff for one hundred dollars, and a judgment accordingly, from which this appeal was taken. Since the cause has been pending in this court, Giros died, and the action was revived in the name of John M. Allen, administrator, plaintiff.

Plaintiff claimed under a warranty deed from Joel Turnham and wife, dated March 29, 1858, conveying one hundred and twelve acres, and of this tract the strip upon which the railroad was built formed a part. Defendant introduced in evidence a deed from Joel Turnham and wife, dated February 11, 1856, to Wm. H. Wymore, Greenup Bird and Madison Miller, conveying a number of tracts; the strip along the river, ten rods wide, on a portion of which the railroad was afterward built, was included in this deed, Turnham claiming to own a half interest in it. Defendant introduced another deed, dated March 10, 1865, from Wymore and wife, Bird and wife, Miller and wife, and one Michael Arthur and wife (said Arthur appearing to be the owner of the undivided half of the premises conveyed), which deed was made to Sarah Baxter, wife of John Baxter, and in which the ten rod strip, with other lands, was conveyed. Also the record in the cause of Higbee, administrator of Joel Turnham, deceased, plaintiff, against Joseph Giros, defendant. This action was begun in 1866, in the Clay circuit court, to foreclose a deed of trust given by Giros and wife to secure the payment of a...