Avery v. Kansas City & Southern Railroad Company
| Decision Date | 31 January 1893 |
| Citation | 21 S.W. 90,113 Mo. 561 |
| Parties | Avery v. The Kansas City & Southern Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court.--Hon. D. A. De Armond, Judge.
Affirmed.
Johnson & Lucas for appellant.
(1) The court erred in refusing to give instructions 1, 2, 3 and 5 asked by the defendant. If defendant constructed its road with the knowledge and acquiescence of the plaintiff over the strip of land in controversy, and did not pay plaintiff therefor, an action for the value of the land accrued to plaintiff, but not the right to maintain ejectment. McClellan v. Railroad, 103 Mo. 312; Baker v Railroad, 57 Mo. 265; Bradley v. Railroad, 91 Mo. 499; Gray v. Railroad, 81 Mo. 132. And a case parallel to the one at bar will be found in Hubbard v Railroad, 63 Mo. 68; Kanago v. Railroad, 76 Mo. 214; Matterson v. Railroad, 76 Mo. 347. An interesting and well considered note, with a full collation of authorities, will be found in the case of Railroad v. Soltweddle, 36 American & English Railroad Cases, 579 to 581. (2) The court erred in admitting alleged conversation with supposed officers and directors of the railroad company, namely, the conversation with R. D. Blair touching refusal to pay royalty, and the fact that there was no coal on the land. (3) The court erred in overruling the motion in arrest filed by defendant. The petition does not state facts sufficient to constitute a cause of action, in that it wholly fails to state that the land had not been condemned for railroad purposes. A case directly in point and determining the sufficiency of a petition of like character. Tompkins v. Railroad, 43 American and English Railroad Cases, 127.
Calvird & Lewis for respondent.
(1) Ejectment will lie when under terms of the lease the estate of the tenant has become forfeited, although no right of entry is expressly inserted in the lease. Horton v. Railroad, 12 Abbott's New Cases, 31; 4 Kent's Commentaries [8 Ed.] p. 127. And no demand for possession is necessary. Ellis v. Kyger, 90 Mo. 606; O'Brien v. Wagner, 94 Mo. 96; Armstrong v. St. Louis, 69 Mo. 315. (2) The switch was put on Avery's land by authority given in the lease, and the lease provided that a failure to pay royalty forfeited the term. And so the McClellan Case and the Baker Case are not in point here. Evans v. Railroad, 64 Mo. 457, et seq.; Bradley v. Railroad, 91 Mo. 500; Horton v. Railroad, supra; Walker v. Railroad, 57 Mo. 275. The plaintiff is not estopped unless he misled defendant to its detriment. This he did not do, for Green testifies that he built the road under the lease. (3) No estoppel is pleaded, and the trial court did not err in refusing defendant's instructions thereon. Noble v. Blount, 77 Mo. 242; Bray v. Marshall, 75 Mo. 330. (4) It was not necessary for plaintiff to allege in his petition that the railroad company had not acquired a right to possession by condemnation; this is a matter of defense. Hennessey v. Railroad, 30 Minn. 55. (5) The answer does not plead an estoppel in pais, and there is no equitable answer for relief against a forfeiture, as suggested in Messersmith v. Messersmith, 22 Mo. 372. The defendant seemed content to rest its case on the legal title, and that inquiry was the sole issue. And so, there being no equity in this case, plaintiff had judgment below, for at common law on breach of condition subsequent the grantor might enter, or, being denied, eject. 4 Kent's Commentaries, supra; Jones v. Railroad, 79 Mo. 96.
This is an action of ejectment begun April 12, 1890, for the possession of a strip of land about ten feet wide and extending across one hundred and twenty acres of plaintiff's land from its main track to a coal shaft, and occupied by defendant as a switch.
On the twenty-first day of December, 1888, plaintiff entered into a written contract with one T. M. Green, by which he leased to him for the term of twenty-five years said tract of one hundred and twenty acres, together with other lands, for mining purposes. The lease provided that the lessee should have the right of way over, through and across all lands of plaintiff, the right of way not to include the right of way for the main line of any railroad. It also provided for the payment of a royalty of a sum amounting to at least $ 100 for each and every year during the continuance of the lease, commencing from the date thereof, and that for any failure to pay the full sum of $ 100 every year, it should be considered a forfeiture of the lease, and that it should be null and void. Green was at the time of taking the lease defendant's general manager. The road was constructed under the authority of the lease with plaintiff's knowledge and consent. Green afterwards turned the lease over to defendant's president. He paid the rent as per the lease up to and including 1887. No rent has been paid since.
The answer is a general denial. Plaintiff's title is admitted by defendant.
The evidence offered by plaintiff tended to show defendant in possession under the lease, the value of the rents and that none had been paid since 1887. Defendant offered no evidence. The case was tried by the court without a jury. Defendant asked five instructions, all of which were refused. No instructions were asked by plaintiff. The judgment was for plaintiff. Defendant filed its motion for new trial and in arrest, both of which being overruled, it brings the case to this court by appeal, and assigns for error the action of the trial court in admitting improper evidence against its objections, refusing instructions and in overruling its motion for new trial and in arrest of judgment.
The first point made by appellant in this court is as to the action of the trial court in permitting the plaintiff who was a witness in his own behalf to testify to various statements made to him by John Q. Blair, R. D. Blair and L. M. Green, all of whom it appears at some time or another had in some way been connected with defendant as its officers or agents. While these objections were in the main well taken, as the evidence was immaterial, we cannot see how the defendant was in any manner prejudiced thereby, as it could not in any way have affected the result. It was, however, proper for the witness to state that he had not received anything under the lease since 1888, for it is for that reason that this suit was brought, and the cause upon which this action is bottomed. The action of the court in admitting this evidence over the objection of defendant will not justify a reversal of the cause on that ground.
Defendant's principal contention is that inasmuch as plaintiff permitted defendant to go on his land and build its road, without objection, that he cannot now maintain this action; but that he must resort to an action for the value of the ground taken; or for damages for breach of the conditions of the lease; or to a suit in equity to compel the lessee to comply with its terms; and cites a large number of authorities to sustain its position.
In the case of McClellan v. Railroad, 103 Mo. 295, 15 S.W 546, cited by appellant's counsel in his brief it is said: "Ejectment will not lie on the part of a...
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