Bryant v. West

• Decision Date: 01 December 1919
• Docket Number: No. 20274.,20274.
• Citation: 219 S.W. 355
• Parties: BRYANT et al. v. WEST et al.
• Court: Missouri Supreme Court

219 S.W. 355

BRYANT et al. v. WEST et al.

No. 20274.

Supreme Court of Missouri, Division No. 1.

December 1, 1919.

On Rehearing, March 2, 1920.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Suit by John R. Bryant and others against Jack West and another. From judgment for defendants, plaintiffs appeal. Reversed, and cause remanded, with directions to enter judgment in accordance with the opinion.

Boone & Lee and Russell & Joslyn, all of Charleston, for appellants.

W. H. Grissom, of East Prairie, and Haw & Brown, of Charleston, for respondents.

BROWN, C.

This suit was begun in the Mississippi county circuit court on November 27, 1911, by petition in the nature of a bill in equity to restrain defendants West and Hinshaw from landing their ferryboat at the west shore of the Mississippi river upon the southwest fractional quarter of section 4 in township 22 of range 17 in said county. The petition states, among other things, that the plaintiffs are the owners and in possession of said land; that defendant West is the agent of defendant Hinshaw, a citizen and resident of Kentucky, is operating a ferry between Hickman, Ky., and the Missouri bank of the Mississippi river, and is landing his boat upon the said land, and discharging freight and passengers thereon, by force and violence and without any right, authority, or permission from plaintiffs to do so, to the great and irreparable injury and damage of plaintiffs; that unless restrained therefrom they will continue to do so, thereby putting plaintiffs to a multiplicity of suits for the recovery of damages; that defendants are insolvent; and that plaintiffs have no adequate remedy at law in the premises.

A preliminary injunction was granted upon the filing of the petition.

The defendants West and Hinshaw, by separate answer, deny that plaintiffs are the owners of the land, admit operating the ferry, deny that their landing on the premises is without authority or right, and set up that one Henry Lewis is the owner of the land, that they hold under a lease from Lewis, that the plaintiffs have a full, complete, and adequate remedy at law, and deny all allegations of the petition not expressly admitted. The reply was a general denial of all matter set up in the answer.

Ethar Lewis, Thomas Lewis, and Henry Lewis appeared, asked to be made parties defendant, and filed an answer admitting that Hinshaw was operating a ferry, landing his boat upon the land described in the petition, and that he would continue to do so unless restrained by the court, and charging that they were the "owners of a strip of land 100 feet wide on top of the bank of said Mississippi river along the entire front of the land in said petition of plaintiffs described, and of all ground between the top of said bank and the water's edge, with the right to the free use and absolute control thereof together with the right to establish a ferry landing at any point thereon, and to authorize others to establish such landings and discharge passengers and freight thereon," and that Hinshaw, by himself or through his agent West, had the right by contract with them to use his ferry landing on said lands to land their boats thereat and discharge freight and passengers thereon.

A motion to dissolve the temporary injunction was filed and the cause went to trial. The following plat represents the land in question and its surroundings, and explains clearly the land descriptions in the pleadings and deeds, and much of the other evidence in the case:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plaintiff John R. Bryant testified, in substance, that his father went into possession of the land described and shown in the plat as the southwest fractional quarter of section 4, township 22, range 17, about 1883 or 1884, and remained in possession until his death. The land was fenced and rented from year to year to tenants who cultivated it in corn. There was a passageway along the top of the bank outside the field during all the time. After his father's death, which occurred in August, 1899, and up to the time of the trial, the witness was in possession for himself and the heirs of his father, who are parties to the suit. There was a ferry between Hickman, Ky., situated on the bank of the Mississippi river about two miles above this land and the Missouri shore for many years. It landed on the Missouri shore at various points on Island No. 6 and on the mainland below it, and sometimes came into the chute in high water landing upon the west shore of the island. A landing was finally established in the southeast fractional quarter of section No. 5 about a quarter of a mile below the one in question. The Bryants also owned the land adjoining in the northwest fractional quarter of section 4, which constituted a part of their field along the river bank. The road between the field and the river had an outlet through a gate, and a lane called "Tankersley Lane" crossed it on the line between sections 4 and 5, and communicated with the landing in section 5.

Carpenter and Ward were running the ferry before' the landing was moved to the Bryant land, and Carpenter asked Mr. Bryant for the privilege of landing at the present point, which Mr. Bryant granted. A year or so afterwards, Mr. Carpenter sold his interest to a Mr. Kirk, but before buying asked Mr. Bryant for his consent to continue to land there, which was granted, and the firm became Kirk & Ward. A year or more afterward, Mr. Hinshaw, in contemplation of a purchase of the ferry equipment and business from Kirk & Ward asked Mr. Bryant for a continuation of the privilege of landing at that point. Mr. Bryant informed him that he could do so as long as he would operate a satisfactory ferry. Mr. Hinshaw purchased and continued to operate the ferry to this landing for a year, when the operation became unsatisfactory to Mr. Bryant, and, as the latter testifies, to the people of the neighborhood, and thereupon Mr. Bryant gave him notice to quit. His refusal to do so resulted in this suit. Mr. Bryant neither asked nor received anything on account of these licenses.

The plaintiff put in evidence a warranty deed from Mary Powell and Lazarus Powell to M. W. and J. R. Bryant, dated January 11, 1894, describing the land conveyed as follows:

"Beginning at the northeast corner of the south half of the northwest quarter of section township 22, range 17, and running diagonally across the south half of the northwest quarter of section 4 to the southwest corner of said south half of the northwest quarter of section 4; also, the north fractional half of the southwest quarter of section 4, township 22, range 17, except the part or parts, right or rights of ferry privileges reserved and granted to my vendor, A. A. Farris, by deed made April 5th, 1887, and filed April 20th, 1887, at 8 o'clock ten minutes, a. m."

Also warranty deed from Alex A. Farris, and wife to George H. Powell, dated April 5, 1887, conveying lands described as follows:

"Beginning at the northeast corner of the south half of the northwest quarter of section 4, township 22, range 17, and running diagonally across the said south half of the northwest quarter of section 4 to the southwest corner of said south half of the northwest quarter of section 4; also the north half of the southwest quarter of section 4, township 22, range 17, reserving to myself, my heirs and assigns, the exclusive ferry franchise along the entire river front of said land, and also the free use and absolute control of one hundred feet on top of bank and along the entire front of said land, and all ground between said line and water edge at all stages of the river to low water mark. The line on top of the bank to bear the same relation to said bank at all times, that is, the water continues to make along the front, the line to advance as the land makes, and if said land should be cut off by the river, the line to recede as the water cuts in and encroaches on it, and if any improvements made by either of the parties on said land shall become the property of the other by reason of the making or falling off of the bank, said party shall have the right to move the same, and shall have six months' notice to do it in, and if not done by that time, or any amicable arrangements made between the parties who may be in interest at the time, said improvements shall belong to the party or parties upon whose side of the land it is."

The defendants introduced in evidence the following deeds: A. A. Farris and wife to W. S. Henderson, dated February 8, 1898, conveying by the following description:

"All the land I now own at the foot of No. 6 Island in Missouri, being a strip 100 feet wide, as shown in my deed to Lasarus Powell, L. F. Dick and possibly to Zack Hinshaw."

Also, deed from W. S. Henderson and wife to Thomas E. and Ethar E. Lewis, dated January 14, 1902, conveying by the following description:

"The east part of the southeast fractional quarter (on Island No. 6) of the fractional quarter of section 4, township 22, range 17, with all the accretions thereunto belonging; also one strip of land 100 feet wide at the foot of Island No. 6 in Missouri on the river front as described in one deed from A. A. Farris to W. S. Henderson on February 8th, 1898, This deed meant to convey all the land owned by W. S. Henderson on Island No. 6, with all accretions thereunto belonging; also the interest I have in the towhead in section 26, township 23, range 17."

Also, lease from Thomas E. and Ethar E. Lewis to W. A. Hinshaw "of the ferry privileges on land which was conveyed to the Lewises by Henderson."

1. The object of this suit is to enjoin the defendants, who operate a ferry from Hickman, Ky., on the east bank of the Mississippi river, around the foot of Island No. 6 to the Missouri shore, from landing their boats and discharging freight and passengers upon the river frontage of a tract of land claimed by plaintif...