Boyce v. Missouri Pac. R. Co.

• Decision Date: 21 May 1902
• Parties: BOYCE v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

68 S.W. 920

168 Mo. 583

BOYCE v. MISSOURI PAC. R. CO.

Supreme Court of Missouri, Division No. 1.

May 21, 1902.

RAILROADS—RIGHT OF WAY—ADVERSE POSSESSION — BURDEN OF PROOF — PRESUMPTIONS—EMINENT DOMAIN—TAKING WITHOUT COMPENSATION.

1. The easement of a railroad company in its right of way, of which it does not own the fee, is not an easement, in the strict, technical sense of the term, which is a right in common with the owner, but is, rather, in the nature of an interest in the land.

2. A railroad occupying private property as a right of way for the statutory period of limitations against actions to recover real property acquires the right to continue to use the way, under the conclusive presumption that possession was taken under a lost grant, though the statute, strictly speaking, does not apply to easements.

3. A railroad company, in ejectment against it by a lot owner to recover land which the company has appropriated, and publicly and notoriously used as a right of way for a period exceeding the period of limitations, is not charged with the burden of showing that the lot owner had knowledge of its possession, as the law implies that the owner had such knowledge, and consented to the occupation.

4. Where a landlord terminates the possession of tenants under a lease of a lot on which a railroad has wrongfully appropriated a right of way, and executes another lease to the tenant, he has such actual possession at that time as will render untenable a claim by him in ejectment to recover the right of way from the railroad, after limitations have run from the time of the execution of the last lease, that the possession was only adverse to his tenant's rights, and not to his own.

5. Const. art. 2, § 21, providing that private property should not be taken for public use without compensation, does not preclude a railroad company from acquiring an easement in a right of way by adverse possession.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Ejectment by Mary E. Boyce against the Missouri Pacific Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Clinton Rowell and Jos. H. Zumbalen, for appellant. Henry G. Herbel and Martin L. Clardy, for respondent.

MARSHALL, J.

Ejectment for the north half of city block No. 3,154 in the city of St. Louis. The petition is in the usual form. The ouster is laid as of January 1, 1893. The answer disclaims as to all except a strip 15 feet wide running from north to south through the land, and asserts ownership thereto in the defendant. The case was tried without the aid of a jury, and judgment entered for the defendant, from which the plaintiff appealed.

In 1862 Mrs. Octavia Boyce, mother of the plaintiff, owned the whole of block 3,154. On the 1st of June, 1862, she leased the whole block to James B. Eads for a term of three years, at an annual rent of $200, with the option for a renewal term for ten years more at a rental equal to 6 per cent. of the value of the land, to be fixed by arbitration. The lease to Eads was never renewed. In 1876 Mrs. Boyce died, and in 1879 the block was partitioned between Mary E. Boyce and John O'Fallon Delaney; the former being allotted the north half, and the latter the south half, of the block. In 1868 Eads sublet the whole block to the Missouri Zinc Company, and that company occupied it until April 19, 1880, when the Eads lease and the sublease to the zinc company were surrendered to Mary E. Boyce and John O'Fallon Delaney, and were canceled; and they, each for themselves, leased their respective parts thereof to the zinc company for a term ending May 1, 1890, and that company remained in possession under said leases until that time. Afterwards the property was rented to others. From 1862 to 1880 James M. Carpenter was the agent for the owners of the property, and collected the rents and paid the taxes. From 1880 to 1890 Hartnett & Co. were the agents for the owners, collected the rents, and paid the taxes. After that date the owners attended to renting the property themselves. In 1872 the Pacific Railroad Company, without color of title or authority of law, entered upon the property, and took possession of the 15-foot strip, constructed a track upon it, which was known as, and constituted a part of, the Kirkwood connection or branch of that road; and that company and its successor, the defendant, has ever since been in open, peaceable, continuous, and uninterrupted possession of said strip, claiming it as of right and adversely to the world, and has paid taxes on it as a part of its Kirkwood branch. Mary E. Boyce did not have actual knowledge of the defendant's possession and claim until October, 1890, and never saw the property until 1898, and John O'Fallon Delaney did not have such actual knowledge until 1895. This suit was begun on March 6, 1897. The defendant's right rests entirely upon a presumption of a grant based upon prescription. The plaintiff asserts three propositions, under all and each of which she claims that she is entitled to judgment, to wit: (1) That, under the constitution of Missouri, the defendant railroad company can only have an easement in the land covered by its right of way, the fee remaining in the owner, subject to the use, and that the statute of limitations does not run in favor of a party having only an easement in land; (2) that the land was continuously leased, and therefore the plaintiff could not lawfully enter into the possession, or challenge the right to possession claimed by the defendant, and hence the defendant's possession could only be adverse to the tenant's rights, and was not adverse to the plaintiff's rights; and (3) that under the constitution of Missouri a railroad company cannot acquire an easement for a right of way by prescription or limitation, but can only do so by paying just compensation therefor to the owner, or into court for the owner, in a suit for condemnation; and of these in their order.

1. Section 21 of article 2 of the constitution provides "that private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without the consent of the owner thereof shall remain in such owner, subject to the use for which it is taken." Even before the adoption of the present constitution, this court held that, in condemnation cases by a railroad for a right of way, the fee did not pass, but remained in the owner, subject to the use. It was also held that an easement passed to the railroad, "giving it perpetual and continuous title so long as it used the land for the purpose for which it was taken, but, when the use was abandoned, then it would revert back to the owner of the premises." Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426. And this, too, notwithstanding the statute then in force authorized the acquisition by the railroad, by condemnation, of an "absolute estate in fee simple"; for it was said that the words "fee simple," used in the statute, were not employed in their technical sense. Since the adoption of the section of the constitution of 1875, quoted, this court has likewise held that a railroad company has only an easement in the land for its right of way or tracks. Union Depot Co. v. Frederick, 117 Mo. 152, 21 S. W. 1118, 1130, 26 S. W. 350; Railway Co. v. Clark, 121 Mo. 169, 25 S. W. 192, 906, 26 L. R. A. 751. But while the railroad does not acquire the fee, it does acquire a perpetual and continuous easement as long as it uses it for such purpose; and the owner of the fee is not entitled to use the land at the same time with the railroad company, but the company is entitled to the exclusive use, limited only as it is or may be by statute in that regard. Therefore the term "easement," as employed in those cases, was not used in its strict, technical sense, but partakes, rather, of the meaning of an interest in the land, than of the original meaning given to the term "easement"; that is, a right in common with the owner or others. 10 Am. & Eng. Enc. Law (2d Ed.) p. 400, and cases cited in notes. It is with this in mind that the first contention of the plaintiff — that the statute of limitations does not apply to easements — must be considered.

Originally, in England, easements were said to lie wholly in grant. Easements are incorporeal hereditaments, and statutes of limitations were held to apply only to actions for the recovery of land. Afterwards the fiction of a "lost grant" was adopted by the courts; that is, the courts presumed, from the long possession and exercise of right by the defendant with the acquiescence of the owner, that there must have been originally a grant by the owner to the claimant, which had become lost. "It was called a `lost grant,' not to indicate that the fact of the existence of the grant originally was of importance, but to avoid the rule of pleading requiring profert." Railroad Co. v. McFarlan, 43 N. J. Law, 605. It was considered the duty of the court to enforce the fiction, "not, however, because either the court or the jury believe the presumed grant to have been actually made, but because public policy and convenience require that long-continued possession shall not be disturbed." Jones, Easem. § 161, p. 138. Pollock, B., in the recent case of Bass v. Gregory, 25 Q. B. Div. 481, decided in 1890, said the fiction of lost grant "has been adopted by almost all civilized nations for the furtherance of justice and the sake of peace." Formerly it was held to apply only to cases where the defendant claimed a right to possession by prescription; that is, that his right began at a period beyond the "time whereof the...