Brown v. Chicago, Burlington and Kansas City Railway Co.
| Decision Date | 17 November 1890 |
| Citation | 14 S.W. 719,101 Mo. 484 |
| Parties | Brown v. The Chicago, Burlington and Kansas City Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court.
Reversed.
H Lander and B. J. Northcott for appellant.
(1) Respondent's first instruction given is erroneous and misleading in that it bases the plaintiff's right of recovery wholly upon his ownership of the eighty acres described in the petition, without regard to the respective rights of the parties to the one hundred feet right of way through the tract, which is really the only matter in dispute. And, again, said instruction requires the jury to pass on the question of title, without submitting any question of fact, upon which they might predicate a conclusion. (2) Respondent's second instruction is erroneous in that it assumes as a fact that James Welsh, the grantee of Lamme, was in the actual possession of the one hundred feet right of way before and at the time of the condemnation, which is a disputed matter. Lynde v Williams, 68 Mo. 360; Green v. Railroad, 60 Mo 405; Peck v. Ritchey, 66 Mo. 114. Again, said second instruction fails to submit to the jury whether Welsh, and those holding under him, so held the open, hostile, exclusive, notorious, continuous, adverse possession of the strip, claiming right or title thereto. Bradley v. West, 60 Mo. 33; Boogher v. Neece, 75 Mo. 384; Crispen v. Hannovan, 50 Mo. 536; Key v. Jennings, 66 Mo. 356. (3) Respondent's third instruction is misleading, confusing, a perturbation of the whole record; and is applicable to no issue or controversy in the case. Appellant nowhere interposed the statute of limitations as a defense. The instruction can have no purpose unless it be an intimation to the jury to find for the plaintiff. Camp v. Heelan, 43 Mo. 591; Hassett v. Rusk, 64 Mo. 325, 328; Quinliven v. English, 44 Mo. 46, at p. 51. (4) Respondent's own showing makes a case of mixed possession of the one-hundredfeet strip in 1870, the railroad company holding possession with title, and Welsh (under whom plaintiff claims) holding without title. Respondent's instructions nowhere present the law applicable to such state of facts. Crispen v. Hannovan, 50 Mo. 536; Bradley v. West, 60 Mo. (5) From November 5, 1879, to January 8, 1880, while Rummell owned the tract of land, there is no word of evidence as to possession of the one-hundred-feet strip, adverse or otherwise. Adverse possession must be proven; it cannot be presumed. Lynde v. Williams, 68 Mo. 369-370. (6) It is established by respondent's own showing, and stands uncontradicted, that from January 8, 1880, to the spring of 1882, while Mitchell owned the tract of land, no title or right was claimed to the one-hundred-feet strip as against the railroad company, and, without counting part of this time, no limitation can be made out. (7) The evidence not only does not fail to show, but does affirmatively show, that Mitchell, from January 8, 1880, to the spring of 1882, did not claim the one-hundred-feet strip of land adversely to defendant company, or to its predecessor; therefore, the proof entirely fails to make out the statutory period of ten years' limitation. (8) Appellant's tenth instruction, refused by the court, should have been given. It is the only instruction in the case that submits to the jury, upon all the evidence, the question whether the possession of the one-hundred-feet strip, claimed by respondent, was held for a period of time named, adversely, under claim of right or title, the truth of which would settle the whole controversy for or against appellant, irrespective of all other facts in the case. (9) Plaintiff, not being in possession at the time of the alleged trespass, July, 1882 (Mitchell, his grantor, having retained his former possession of the farm for the crop year of 1882), and defendant having taken actual possession of the one-hundred-feet strip in September, 1881, and held the possession ever since, plaintiff cannot recover in this action, but must be remitted to his ejectment, where the title and all damages can be settled. Brown v. Carter, 52 Mo. 46; Cochran v. Whiteside, 34 Mo. 417; Ware v. Johnson, 55 Mo. 500; Brown v. Hartzell, 87 Mo. 564.
A. W. Mullins with O. F. Libby for respondent.
(1) The circuit court did not err in giving the plaintiff's first instruction. If the plaintiff was the owner and in the actual possession of the land in question, and that while he so owned and possessed it the defendant, without the consent and against the will of the plaintiff, went upon the premises and constructed its railroad, and appropriated to its own use a strip of land, one hundred feet wide, through such premises, for right of way, then it is clear that the plaintiff was entitled to recover. And so the jury were directed by that instruction. Combs v. Smith, 78 Mo. 32; Welsh v. Railroad, 19 Mo.App. 127. (2) There was no error committed in giving plaintiff's second instruction. School District v. Georges, 50 Mo. 194; Railroad v. McGee, 75 Mo. 522; Callaway County v. Nolley, 31 Mo. 393; Welsh v. Railroad, 19 Mo.App. 127; People v. Clarke, 9 N.Y. 349; Rowan's Exr's v. Portland, 8 B. Mon. 232, 259; Wood on Lim. of Actions, p. 92; 11 Cent. Law. Jour., pp. 241-242. (3) The plaintiff's third instruction is the law, and could not possibly have prejudiced the defendant. It simply directed the jury that plaintiff's right of action, "if any existed in his favor under the instructions," was not barred by limitation, if his action was commenced within five years next after defendant's entry upon and taking possession of plaintiff's land. Combs v. Smith, 78 Mo. 32. (4) The defendant's fourth, fifth, sixth, seventh, eighth and ninth instructions submitted the question of the statute of limitations to the jury in the most favorable manner for the defendant, and required the very highest degree of proof on the part of plaintiff. There was no error committed by the court in refusing to give defendant's tenth instruction. State v. Brokerage Co., 85 Mo. 411; Flint v. Young, 70 Mo. 221; Spohn v. Railroad, 87 Mo. 74; State v. Gann, 72 Mo. 374. (5) The contention here by appellant that plaintiff's evidence was insufficient to authorize the giving of instructions, or to support the verdict, is not predicated on any point made or question raised on the trial. No demurrer to the evidence was offered, nor was any instruction asked upon the whole evidence. Appellant also asked for instructions on the question of the statute of limitations, and should not now be heard to complain that instructions were given on that question. Keen v. Schnedler, 92 Mo. 516. (6) The doctrine announced by the instructions asked by the defendant and given by the court on the statute of limitations is the same as that contained in plaintiff's instruction on that issue. "It is settled that one party cannot be allowed to complain of another's instructions where his own announced the same doctrine." Reilly v. Railroad, 94 Mo. 600; Thorpe v. Railroad, 89 Mo. 650; Holmes v. Braidwood, 82 Mo. 610. (7) There being sufficient evidence upon which to submit the case to the jury for their determination, and the jury having found for the plaintiff, and the defendant's motion for a new trial having been overruled by the trial court, and the verdict approved thereby, this court will not review the evidence to ascertain with respect to which side, in the opinion of this court, had the weight and preponderance of the evidence. The jury are the rightful and legitimate triers of the facts. Oglebay v. Corby, 96 Mo. 285; Price v. Evans, 49 Mo. 396; Gillespie v. Stone, 43 Mo. 350; McAfee v. Ryan, 11 Mo. 364.
Brace, J. Ray, C. J., and Barclay, J., are of the opinion that the case should be remanded.
-- In this action the plaintiff seeks to recover damages from the defendant for wrongfully entering upon the north half of the northwest quarter of section 8, township 57, range 20, in said county and appropriating a strip of land one hundred feet wide through said tract for the purposes of its railroad, and offers to convey said strip to the defendant upon the payment of said damages and a reasonable compensation therefor.
The answer sets up ownership by the defendant of the one-hundred-feet strip by virtue of a condemnation proceeding, commenced March 11, 1870, and concluded April 11, 1870, by the Missouri Central Railroad Company against one Milton Lamme.
It is conceded that at the time these proceedings were instituted Lamme was the owner in fee simple of said eighty-acre tract of land and that the plaintiff by mesne conveyances has acquired his title thereto. It is also conceded that the said Missouri Central Railroad Company by virtue of the condemnation proceedings aforesaid obtained Lamme's title to the one-hundred-feet strip across said tract for a right of way for its railroad, and that the defendant by mesne conveyances has acquired all the right, title and interest of said railroad company thereto.
In the summer of 1870, under the right acquired by said condemnation proceedings, the Missouri Central Railroad Company entered upon said strip and graded a roadbed on it. This work ceased during that summer, and thereafter neither said railroad company nor any of its grantees did any work upon, or exercised any acts of ownership over, said strip until the fall of 1881. In September of that year the defendant by Elijah Smith and his employes entered upon the right of way and between that time and the following December dressed and finished the old grade and put it in condition for the track which was laid thereupon in the spring following, and afterwards in the spring and summer of 1883 fenced the right of way. Pending said condemnation proceedings and on the first of ...
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