Cape Girardeau & Bloomfield Macadamized & Gravel Rd. Co. v. Renfroe

• Citation: 58 Mo. 265
• Parties: CAPE GIRARDEAU & BLOOMFIELD MACADAMIZED AND GRAVEL ROAD Co., Respondent, v. ANDREW J. RENFROE, Appellant.
• Decision Date: 31 October 1874
• Court: Missouri Supreme Court

58 Mo. 265

CAPE GIRARDEAU & BLOOMFIELD MACADAMIZED AND GRAVEL ROAD Co., Respondent,

v.ANDREW J. RENFROE, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Cape Girardeau Court of Common Pleas.

Houck & Ranney, for Appellant.

Lewis Brown, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment to recover the possession of a house and a parcel of land named in the petition.

The petition was as follows, to-wit: “Plaintiff states that by an act of the General Assembly, entitled, ‘An act to incorporate the Cape Girardeau and Bloomfield Macadamized and Gravel road Company,’ approved Oct. 25th, 1857, plaintiff was duly incorporated. Plaintiff states, that on the 1st day of July, 1873, they were legally entitled to the possession of a certain building known as the Allenville toll house, situated in said county, at Allenville, and the ground on which the same stands, and being so entitled to the possession thereof, afterwards, to-wit: on the 2d day of July, 1873, this defendant unlawfully and wrongfully entered thereon, and wrongfully and unjustly detains plaintiff from the possession thereof, to plaintiff's damage in the sum of five hundred dollars. Plaintiff states that the monthly rents and profits of said realty are reasonably worth twenty-five dollars per month. Plaintiff demands judgment for the restitution of said premises, and for five hundred dollars for their damages, so as aforesaid had and sustained, as well as for twenty five dollars per month, monthly rents and profits.”

The answer was a denial of the facts stated in the petition. A trial was had by the court, a jury having been waived by the parties.

On the trial the evidence introduced by the plaintiff tended to prove that those under whom the defendant claimed title to the premises in controversy, were, in the year 1854, in possession of and claiming a tract of land adjoining a river or stream of water, called White Water, which tract of land included the parcel of land in controversy; that in the year 1854, the County Court of Cape Girardeau county established and opened a county road through said tract of land, so possessed and claimed by those under whom the defendant claims title, and constructed a bridge across or over said stream of water, at or near the place where the toll house in controversy was afterwards erected; that the county road so established was forty feet wide. The evidence also tended to show that the land upon which the toll house was afterwards erected was included in the right of way occupied by said county road or adjoining thereto; that shortly after this county road was opened and the bridge erected, the bridge was washed away by high waters and wholly destroyed; that after the destruction of the bridge the county road ceased to be used as a public highway, until about the year 1862, when a temporary bridge was erected upon the same abutments erected for the original bridge, by the military authorities; after which the county road was again traveled and used as a public highway for a considerable time; that in the year 1857, the General Assembly of the State of Mo. passed an act incorporating the plaintiff; that said act of incorporation adopted a previous act of the General Assembly, which had been enacted in the year 1851, incorporating a similar company, as a part of the act incorporating plaintiff; that by said act plaintiff was authorized to construct an artificial road from the city of Cape Girardeau in Cape Girardeau county, to the town of Bloomfield in Stoddard county. It is provided by the tenth section of said act of 1851, that the road to be constructed by plaintiff under its charter should be opened and kept free from all obstructions at least thirty feet wide, of which at least sixteen feet should be artificially constructed of timber, plank, stone, gravel or other hard material, so that the same should form a hard, smooth and even surface, etc.

By the eleventh section of the act the company was authorized to receive by deed, gift, purchase or other conveyance, a strip of land over which to construct its road, not exceeding one hundred nor less than forty feet in width. It was further provided, that if the company was not able to otherwise obtain the land for the road bed, land might be condemned to the use of the company for said purpose, in a manner pointed out in the statute.

The 12th section of the charter of plaintiff provided as follows: “It shall be lawful for said company to own in fee simple or otherwise, along the line of said road, or at any ermination of the same, pieces and parcels of land for the purpose of procuring timber and other materials from the same for the use of said road, and for erecting thereon toll houses and for other purposes; and said company may at any time sell such tracts or parcels of land, or any part thereof, executing to the purchaser or purchasers a conveyance in manner prescribed by law regulating conveyance by corporations.”

It is also further provided by said act, that if the necessary materials cannot be otherwise had for the construction of the road, the company may enter upon adjoining lands and take the necessary materials by paying therefor in a manner provided for in the act, etc.

The evidence produced by plaintiff tended to further prove that the plaintiff surveyed its road in the year 1857 or 1858, but that it did not construct its road and occupy the same at the point where the toll house was erected, or within several miles thereof, until the year 1866, at which time the road was constructed on the line and route of the county road before spoken of, and a new bridge constructed on the same abutments erected by the county for the bridge which had before been washed away; at which time (in 1866) the plaintiff erected the toll house in controversy, which was constructed within about thirty feet of the centre of the artificial road constructed by plaintiff, and near the bridge; that the plaintiff only claimed to locate its road forty feet wide; that the defendant knew of the erection of the toll house at the time it was erected; that the house had been occupied for the purpose of a toll house by plaintiff, and that the defendant entered into the possession of the toll house without the consent of plaintiff, on the 15th of July, 1873, claimed title to the same, and withheld the possession of the house from plaintiff at the time suit was commenced. There was also some evidence given to show the damage done to plaintiff by the entry of defendant, and the value of the monthly rents of the house.

The defendant, on his part, offered in evidence a deed from Y. M. Powell to Michael Rodney, dated the 10th day of January 1842, which purported to convey a tract of land to said Rodney, which included the land on which the toll house in controversy stood, as well as that part of plaintiff's road adjacent thereto. This deed was objected to by the plaintiff, because it was acknowledged and recorded in Stoddard county and not in Cape Girardeau county, and could therefore impart no notice to plaintiff, and because defendant was estopped, he and his predecessors having permitted the right of way to be used for a county road.

These objections were overruled, and the deed read in evidence, to which the plaintiff excepted. The defendant then read in evidence several deeds, through all of which a title to said land was conveyed or purported to be conveyed and vested in the defendant. These deeds were each objected to as they were introduced, on the same ground of estoppel urged to the deed from Powell to Rodney. The objections were severally overruled and exceptions taken.

The defendant then introduced evidence tending to prove that he and those under whom he claims to derive title had been in possession of said lands for from twenty-five to thirty years before the commencement of the suit, claiming the same; and that the toll house was not erected or occupied until the year 1866, and that the house was erected with the knowledge of defendant and his grantors. The foregoing was substantially all the evidence in the case.

At the close of the evidence the court, at the request of the plaintiff, declared the law to be as follows: 1st. “The jury is instructed that if they believe from the evidence, that the defendant on the 2d day of July, 1873, or since, unlawfully and wrongfully entered and took possession of the house known as the toll house, as described in the petition, the jury will find for the plaintiff.”

3d. “The jury is instructed if they believe from the evidence that the County Court of Cape Girardean county appointed commissioners to view and locate a public road from the city of Cape Girardeau to Bloomfield; and if they further believe from the evidence that such commissioners did view and locate said road, and did make a report to said court, and that said report was by said court approved; then the route so selected and approved became and was a public road of the county, and the plaintiff had, with the consent of the County...