Brown v. Weare, 37273.

• Court: United States State Supreme Court of Missouri
• Citation: 152 S.W.2d 649
• Decision Date: 18 April 1941
• Docket Number: No. 37273.,37273.
• Parties: JOSEPH A. BROWN, Plaintiff, v. PORTER B. WEARE ET AL., Defendants, W.G. WHITE, Appellant.

152 S.W.2d 649 JOSEPH A. BROWN, Plaintiff,
v.
PORTER B. WEARE ET AL., Defendants, W.G. WHITE, Appellant. No. 37273. Supreme Court of Missouri. Division One, April 18, 1941. Rehearing Denied, June 12, 1941.

[152 S.W.2d 651]

Appeal from Lincoln Circuit Court. — Hon. Edgar B. Woolfolk, Judge.

[152 S.W.2d 652]

AFFIRMED.

William C. Martin and Lowenhaupt, Waite & Stolar for appellant.

(1) The plaintiff has no title to the lands in controversy, and therefore ought not prevail. Cullen v. Johnson, 325 Mo. 253, 29 S.W. (2d) 39. (a) The deeds under which plaintiff claims definitely exclude the station grounds. Snoddy v. Bolen, 122 Mo. 479, 24 S.W. 142; Lyons v. Carr, 70 S.W. (2d) 542; Hall v. Wabash Ry. Co., 133 Iowa, 714, 110 N.W. 1039; Spencer v. Wabash Ry. Co., 132 Iowa, 129, 109 N.W. 453; Collins v. Baird, 125 Kan. 303, 263 Pac. 1048; Higgins Oil & Fuel Co. v. Victory Co., 230 Fed. 421; Stearns v. Mullen, 4 Gray, 151; Reynolds v. Gaertner, 117 Mich. 532, 76 N.W. 3; Vincent v. Kalamazoo, 111 Mich. 230, 69 N.W. 501. The exception of the station grounds is not subject to construction. Krug v. Bremer, 316 Mo. 891, 292 S.W. 702; McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047; Grenzebach v. Franke, 315 Mo. 392, 286 S.W. 79; Morgan v. C. & A. Railroad Co., 96 U.S. 716, 24 L. Ed. 743. The exception is fortified by other language of the deed. Exception of "right of way" distinguished from exception of "station grounds." Chouteau v. Mo. Pacific, 122 Mo. 375, 30 S.W. 299, 22 S.W. 458; State v. Griffith, 342 Mo. 229, 114 S.W. (2d) 976. (b) Porter B. Weare, from whom plaintiff claims, could not, after his conveyance to defendant's predecessors in title, create or transfer any title or interest in the station grounds, having exhausted his title by that conveyance. Stanbery v. Wallace, 45 S.W. (2d) 198; St. Louis-S.F. Ry. Co. v. King, 329 Mo. 1203, 50 S.W. (2d) 94; Chouteau v. St. Louis, 331 Mo. 1206, 56 S.W. (2d) 1050; Wooldridge v. Smith, 243 Mo. 190, 147 S.W. 1019, 40 L.R.A. (N.S.) 762; State v. Griffith, 342 Mo. 229, 114 S.W. (2d) 976; Askew v. Vicksburg S. & P. Ry. Co., 171 La. 947, 132 So. 510; Texas & Pac. Ry. Co. v. Martin, 123 Tex. 383, 71 S.W. (2d) 867; Texas & Pac. Ry. Co. v. Vaughan, 73 S.W. (2d) 632; Morgan v. C. & A. Railroad Co., 96 U.S. 716, 24 L. Ed. 743; Stevens v. Galveston Railroad Co., 212 S.W. 639; Shreve v. Norfolk & W. Ry. Co., 109 Va. 706, 64 S.E. 972, 23 L.R.A. (N.S.) 771; Mo. Const., Art. II, Sec. 21; Ruch v. Rock Island, 97 U.S. 693, 24 L. Ed. 1101; Schulenberg v. Harriman, 21 Wall. 44, 22 L. Ed. 551; Rice v. Boston & Worcester Ry. Corp., 94 Mass. 141; Quinn v. Pere Marquette Ry. Co., 256 Mich. 143, 239 N.W. 376; Epworth Assembly v. Ludington, etc., Ry. Co., 236 Mich. 565, 211 N.W. 99; Halpin v. School District, 224 Mich. 308, 194 N.W. 1005; Tinkham v. Erie Railroad, 53 Barb. 393; 21 C.J., pp. 1017-1018, sec. 180; 1 Shep. Touch., 149; Hoselton v. Hoselton, 166 Mo. 182, 65 S.W. 1005. (2) The appellant, W.G. White, owns the station grounds in fee simple. (a) The deeds of Porter B. Weare passed an unconditional fee simple estate to the railroad, appellant's predecessor in title. R.S. 1929, sec. 3106; Schee v. Boone, 295 Mo. 212, 243 S.W. 882; Gray, Perpetuities, sec. 31; Tiffany, Law of Real Property (3 Ed.), 220; Studdard v. Wells, 120 Mo. 25, 25 S.W. 201; Rowe v. May, 101 Pac. (2d) 391; First Presbyterian Church of Salem v. Tarr, 63 Ohio App. 286, 26 N.E. (2d) 597; Board of Trustees of Ruston Circuit, M.E. Church South v. Rudy, 192 La. 200, 187 So. 549. No intent to pass a less estate than an absolute fee simple "expressly appears." Tiffany, Real Property (3 Ed.), sec. 192; Askew v. Vicksburg, S. & P. Ry. Co., 171 La. 947, 132 So. 510; Texas & Pac. Ry. Co. v. Martin, 123 Tex. 383, 71 S.W. (2d) 867; Texas & Pac. Ry. Co. v. Vaughan, 73 S.W. (2d) 632; Haydon v. Railroad Co., 222 Mo. 126, 121 S.W. 15; Chouteau v. St. Louis, 331 Mo. 781, 55 S.W. (2d) 299; R.S. 1929, sec. 3106. No intent to pass a less estate than an absolute fee simple is "implied in the grant." R.S. 1929, secs. 4655, 4684; Coates & Hopkins Realty Co. v. Kansas City T. Ry. Co., 328 Mo. 1118, 43 S.W. (2d) 817; Strong v. Whybark, 204 Mo. 341, 102 S.W. 968; Karsten v. Winkleman, 209 Ill. 547, 71 N.E. 45; Tiffany, Real Property (3 Ed.), sec. 1302; Gentry v. Field, 143 Mo. 399, 45 S.W. 286; Bump, Fraud. Conv. (3 Ed.), 267; Dodge v. Briggs, 27 Fed. 160; Davis v. Woody, 161 Mo. 17, 61 S.W. 695; Anderson v. Cole, 234 Mo. 1, 136 S.W. 395; 18 C.J., Title Deeds, sec. 499, p. 421. (b) And if the railroad took less than such an estate, respondent is in a dilemma, his arguments establishing appellant's title. R.S. 1929, sec. 4655; Coates & Hopkins v. Kansas City T. Ry. Co., 328 Mo. 1118, 43 S.W. (2d) 817; 21 C.J., Title Estates, pp. 1017-1018, sec. 180; Rice v. Boston & Worcester Ry. Co., 94 Mass (12 Allen) 141; Quinn v. Pere Marquette Ry., 256 Mich. 143, 239 N.W. 376; Epworth Assembly v. Ludington, etc., Ry. Co., 236 Mich. 565, 211 N.W. 99; Halpin v. School District, 224 Mich. 308, 194 N.W. 1005; Tinkham v. Erie Railroad, 53 Barb. 393; Juif v. Dillman, 287 Mich. 35, 282 N.W. 892.

Jones & Biggs, Wm. H. Biggs and R.B. Graham, Jr., for respondent.

(1) The railroad received only an easement in and to said property for so long as it was used for railroad purposes. Allen v. Beasley, 297 Mo. 544, 249 S.W. 387; State ex rel. State Highway Comm. v. Griffith, 114 S.W. (2d) 976; St. Louis-S.F. Ry. Co. v. King, 329 Mo. 1203, 50 S.W. (2d) 94; Coates & Hopkins Realty Co. v. Terminal Ry. Co., 328 Mo. 1118, 43 S.W. (2d) 817; Kansas City & N. Connecting Railroad Co. v. Baker, 183 Mo. 312, 82 S.W. 85; St. Joseph, St. Louis & S.F. Railroad Co. v. Smith, 170 Mo. 327, 70 S.W. 700; Thompson v. Chicago, Santa Fe & California Ry. Co., 110 Mo. 147, 19 S.W. 77; Sec. 4655, R.S. 1929; Art. II, Sec. 21, Mo. Const. (2) Upon the admitted abandonment by the railroad of its easement over the lands in question, the use of said lands passed to the owner of the adjoining property, plaintiff-respondent herein. Roanoke Inv. Co. v. Kansas City & S.E. Ry. Co., 108 Mo. 50, 17 S.W. 1000; Chouteau v. Mo. Pac. Ry. Co., 122 Mo. 375, 22 S.W. 458; Roxana Petroleum Corp. v. Sutter, 28 Fed. (2d) 159; Paine v. Consumers' F. & S. Co., 71 Fed. 626; 2 Elliott on Railroads, sec. 1171; McLemore v. Memphis & C. Ry. Co., 111 Tenn. 639, 69 S.W. 338; Smith v. Hall, 103 Iowa, 95, 72 N.W. 427; Barton v. Jarvis, 218 Ky. 239, 291 S.W. 38; Waddell v. Board of Directors, 190 Iowa, 400, 175 N.W. 65; Grant v. Moon, 128 Mo. 43, 30 S.W. 328; Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363; Hall v. Wabash Ry. Co., 133 Iowa, 714, 110 N.W. 1039; Askew v. Vicksburg S. & P. Ry. Co., 171 La. 947, 132 So. 510; Texas & Pac. Ry. Co. v. Martin, 123 Tex. 383, 71 S.W. (2d) 867; Morgan v. C. & A. Railroad Co., 96 U.S. 716, 24 L. Ed. 743; Stevens v. Galveston Railroad Co., 212 S.W. 639; Shreve v. Norfolk & W. Ry. Co., 109 Va. 706, 64 S.E. 972.

DOUGLAS, J.

This is an action to quiet title to land in Lincoln County. The land includes a strip 100 feet wide which had formerly been used for a railroad right of way and also a parcel adjoining the right of way which had been used by the railroad company for station purposes at the town of Silex. All the land had been abandoned for railroad purposes before this action was instituted. Plaintiff's title to the right of way strip is not questioned. The parcel used for station grounds is the subject of dispute.

In 1883 defendant Weare, the common source of title, for a consideration of one dollar, granted to the St. Louis, Hannibal & Keokuk Railroad Company the strip of land for a right of way through the west half of the northeast quarter of Section 7 lying outside of the town of Silex and also the parcel of land at Silex for station grounds. The deed expressly limited the use of both for railroad purposes.

Several years later Weare conveyed to plaintiff's predecessor in title the tract of land from which the right of way and station grounds had been taken. That deed contained a clause, which we shall discuss later, "excepting" the right of way and station grounds.

The same tract was acquired by plaintiff through mesne conveyances, the deeds carrying the same "excepting" clause. In addition plaintiff later received from Weare a quitclaim deed covering the same tract and also containing the same "excepting" clause.

In 1934 the right of way and station grounds were abandoned by the railroad company. Several years later the railroad company quitclaimed the station grounds to defendant White.

Thereafter plaintiff filed this suit asserting his title to the land formerly used both for the right of way and the station grounds. Defendant White, by answer and cross bill, denied plaintiff's title to the station grounds and asserted his own. The other defendant of record, Weare, filed no answer.

Plaintiff's evidence showed that he is the present owner of the land contiguous and adjacent to the right of way and station grounds, his land being the same tract from which they were originally taken.

The court entered a decree adjudging title to both the right of way and station grounds in plaintiff, and defendant White has appealed.

The deed of 1883 from Weare and his wife to the railroad company recited that "for and in consideration of the sum of one dollar to them in hand paid by the St. Louis, Hannibal and Keokuk Railroad Company, the receipt whereof is hereby acknowledged, we do hereby sell, convey unto the said ... Railroad Company their successors and assigns the right of way for said Railroad one hundred feet in width, being fifty feet in width on each side of the center line of said road, as the same is now located over and through the following described piece or parcel of land, lying and being in the County of Lincoln and State of Missouri, to-wit: The west half of the northeast quarter of section seven, township fifty, range one, W. 5th, P.M. lying outside of...