Baker v. Chicago, Rock Island & Pacific R.R. Co.
| Citation | 57 Mo. 265 |
| Court | United States State Supreme Court of Missouri |
| Decision Date | 31 August 1874 |
| Parties | ISAAC BAKER, Respondent, v. THE CHICAGO, ROCK ISLAND & PACIFIC R. R. Co., Appellant. |
Appeal from Clinton Circuit Court.
J H Shanklin and M. A. Low, for Appellant.
I. The conditions in the agreement were conditions subsequent and not conditions precedent. Respondent cannot now, after he has permitted the company to expend large sums of money thereon, recover the land with the improvements, because the company failed to fully perform the conditions of the contract. He can have the contract specifically performed, or may recover damages for the non-performance of it, or he may pursue the remedy the statute gives--build the fence, gates and crossings and recover the cost of the company. .)
II. A parol license, executed, frequently amounts to a grant, and is irrevocable. The expenditure of money or labor by one man on the land of another, under a license given by the owner, will estop the owner from revoking the license and wresting the possession of the land from the licensee. A license thus executed gives an absolute right, and the licensor will be estopped from revoking it to the injury of the licensee. A license by parol is as irrevocable as a license by deed; in either case the license may be revoked before it is executed, but not after. .)
III. Where one acquiesces in the occupation of his land for the construction of a railroad, without pre-payment of the land damages, upon an understanding or contract for the future payment by the company, and the road is constructed and put in operation, he cannot afterwards, on failure to obtain payment, maintain ejectment for the land. .)
Porter & Turner and Thomas E. Turney, for Respondent.
I. Plaintiff has done nothing to mislead the company to their prejudice, and they enter and construct their road under no misapprehension of their rights. They can claim nothing then by way of estoppel. (Bales vs. Perry, 51 Mo., 449.)
II. A vendee in possession under a contract of purchase, to successfully resist an action of ejectment by the vendor, must show a compliance on his part with the terms and conditions of his contract. (Gibbs vs. Sullen, 48 Mo., 237; Pierce vs. Tuttle, 53 Barb., 135.)
III. A right of easement, such as is claimed by defendant, can only be created by deed. (Fuhr vs. Dean, 26 Mo., 116.)
This was an action of ejectment to recover possession of a strip of land composing a portion of the right of way of the Chicago and Southwestern Railway Company, on which the track is located and built, and the trains now running.
The defendant answered, interposing a general denial; and for a further answer and defense, stated, that during the years 1870 and 1871 the Chicago & Southwestern Railway Company, a corporation duly incorporated and organized under and by virtue of the laws of the State of Missouri, located and constructed said road, from the city of Washington, in the State of Iowa, to the city of Leavenworth, in the State of Kansas, which said Railroad ran through and across the land described in the petition; that after said railroad had been located across said land, and before the construction thereof had been commenced by said last named company, plaintiff, for the purpose of aiding in the construction of said railroad, made, executed and delivered to said last named company a deed of conveyance, granting to the company the real estate to be held and used by them for the purpose of constructing and maintaining their said road thereon; and that said Chicago & Southwestern Railway Company, on or about the first day of October, 1870, entered upon said land and constructed their said railroad over and across the same, with the knowledge, consent and license of plaintiff; and continued from that time to occupy and use said land for the purpose aforesaid, until about the 9th of October, 1871, when they leased and demised all of their said railroad and the lands appurtenant thereto, including the lands described in the petition, to the defendants; that at the time of said leasing, said Chicago and Southwestern Railway Company were in the possesion of said strip of land, by the acquiescence, leave, license, and consent of plaintiff, as well as by right of said grant to them; and that being so in the possession thereof, they delivered the possession to the defendants, who have ever since continued to occupy and use the same with said railroad; that ever since said 9th day of October, 1871, defendants have been running and still are running and operating said railroad, and are running passenger and freight trains daily, etc.
To this answer the plaintiff filed a replication, and the cause was submitted to the court without the intervention of a jury.
The evidence showed that the plaintiff lived near the railroad when it was being built; that he made no objection to their building the same on his land, and that he proposed giving them the right of way if they would fence the road and make cattle guards and crossings within thirty days after the completion of the same. It was also shown that the plaintiff executed a relinquishment of the right of way to the land in controversy, conditioned that the company should comply with the law in regard to fencing, cattle guards and farm crossings, and delivered the same to the agent of the company, upon the condition, however, that it was not to be delivered to the company till they complied with its terms. The relinquishment was never delivered by the agent to the company, they having failed to erect the fences and cattle guards.
Upon the case, as thus made, the defendants asked the court to declare the law as follows:
1st. “If the court finds that plaintiff acquiesced in the occupation of his land for the construction of the Chicago & Southwestern Railroad, without pre-payment of his land damages, upon an understanding or contract with the Chicago & Southwestern Railway Company, that in thirty days after the completion of their road over plaintiff's land, they would fence their road where it runs through plaintiff's land, and put in cattle guards and farm crossings, in compliance with the requirements of the general railroad law of the State, and that the road is completed and in operation, even though the court finds that the road has not been fenced where it runs through plaintiff's land, he cannot recover.” 2d. “If the court finds that plaintiff consented to the occupation of the land in controversy, for the construction of said railroad, and executed a conveyance of the right of way over the same, to the Chicago & Southwestern Railroad Company, conditioned that said company should, in thirty days after the completion of said road over said land, fence said road where it runs through plaintiff's land, and put in cattle guards and farm crossings in compliance with the requirements of the general railroad law of this State, which said conveyance was placed in the hands of John W. McMichael, to be delivered to said company, if its conditions should be complied with, even though the court finds that said company has not fenced said road as by the terms of said conveyance they were required to do, the court must find for defendants.”
The court refused to declare the law as prayed for by defendants, and then gave judgment for plaintiffs; whereupon the defendants bring the case here by appeal.
It is admitted that the defendants have not complied with the conditions upon which the plaintiff authorized them to enter upon his land and build their road; and the only question is, whether he can treat his...
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