Cape Girardeau & S. W. Ry. Co. v. Hatten

• Decision Date: 01 December 1890
• Citation: 102 Mo. 45,14 S.W. 763
• Court: Missouri Supreme Court
• Parties: CAPE GIRARDEAU & S. W. RY. CO. v. HATTEN et al.

14 S.W. 763

102 Mo. 45

CAPE GIRARDEAU & S. W. RY. CO. v. HATTEN et al.

Supreme Court of Missouri.

December 1, 1890.

CONSTRUCTION OF CONTRACT — SWAMP LANDS — SALE BY COUNTY.

1. A railroad company and a county entered into a contract reciting the sale of swamp lands to the company at $1.25 per acre; that a deed of the lands to the company had been placed in escrow; that the company proposed to drain said land at an expenditure equivalent to the price of said land; that said work would open up to settlement a large part of the county, and promote the health thereof. The contract then provided that in consideration of the premises the county would pay the company the price of said land, and that the deed should on the completion of the work be delivered to the company. The company agreed to build a levee across the swamp of a specified width, and operate a railroad thereon. The company was to have the right to leave openings in the embankment wherever it saw fit, putting trestle-work in place thereof. It, however, agreed to open ditches along said levee on both sides, if necessary, to drain said land, and to drain the surface water when necessary into the places where it erected trestle-work. Held, that the contract was merely a donation to the company in consideration of building and operating the road, and not a contract to deed swamp lands as payment for reclaiming them.

2. Though, by Rev. St. Mo. 1879, § 6153, county courts may cause the swamp lands to be sold for not less than $1.25 per acre, and by section 6155 the proceeds shall be applied to purposes of reclaiming, and any surplus to the school fund, the county court had no authority to make said disposition of the lands to the company.

3. In an action to enjoin the return of said deed to the county court, the county was properly permitted on its motion to be made a defendant.

BARCLAY, J., dissenting.

Appeal from circuit court, Mississippi county; H. C. O'BRYAN, Judge.

Wm. Carter and Wilson & Whitelaw, for appellant. M. M. Sheets and Dinning & Byrnes, for respondents.

BLACK, J.

The plaintiff railroad corporation commenced this action in the Wayne circuit court against the judges and clerk of the county court of that county to enjoin James F. Hatten, who is one of said judges, from surrendering to the county court a deed held by him in escrow conveying to the company some 9,000 acres of swamp lands; and to enjoin the judges from making any order changing the records of the court under which the deed was executed, until it should be determined whether the plaintiff was entitled to the possession of the same, and for other relief. The county of Wayne was made a defendant on its own motion. The Mississippi circuit court, to which the cause was transferred by change of venue, dissolved the temporary injunction, and dismissed the bill, after a full hearing of the case on the pleadings and evidence. The undisputed facts are these: On the 14th March, 1882, the railway company and the county of Wayne, acting by and through the county court, entered into a contract for the purchase and sale of all the swamp lands of that county. It is stated in the lengthy preamble to the contract, by way of recitals, that the county sold to the company its swamp lands, aggregating 9,500 acres, at the price of $1.25 per acre, making the sum of $11,875; that a deed conveying the land to the company had been placed in the hands of James F. Hatten; that the company "proposes to do certain work to drain, reclaim, and protect said land from the overflows of the St. Francois and Castor rivers, for the price and sum of $11,875, and which is a low charge for said work, and whereas said proposed work will open to settlement and cultivation a large portion of the southern part of this county now particularly of no value, and also promote the health of the country by a drainage of said lands." The contract then goes on to provide that "in consideration of the premises, and other valuable considerations," the county agrees "to pay said railway company the sum of $11,875, said sum being the price of 9,500 acres of swamp land sold to said railway company at $1.25 per acre, and a deed to said lands has been made and executed by said county of Wayne this day, and delivered to James F. Hatten, as an escrow, and to be by him delivered to said railway company when said railway company shall have fully performed and done the work hereinafter to be specified." The subsequent material stipulations on the part of the company are as follows: "(1) To erect, build, and maintain a levee from some point on the boundary line on the east side of said Wayne county, in township 27, across that part of Wayne county known as `Mingo Swamp' to the highlands on the west side of said swamp, to such a point on the said opposite side as said railway company deems best suited in that behalf, said levee so erected to have a top or crown of not less than twelve feet, and a base to be in proportion; and further said railway company agrees to open continuous ditches along said levee on both sides, if necessary, to drain said land. It is, however, distinctly understood that the said railway company, if it shall deem it advisable, may build trestles, or drive piling, or build bridges, at any point, or points, along said levee, when it shall be deemed advisable by it to do so, and that said county of Wayne will not object, or except, to the fact that the said levee is not a complete earth embankment; but on the other hand the said railway company expressly agrees to drain the surface water, when necessary, into said places where it may have erected trestle-work, piling, or bridging, and it is distinctly understood that it is discretionary in said railway where it may wish to erect and maintain said trestle, piling, or bridges. (2) Said railway company agrees that it will do said work within two years from date of this contract, and also that within said time, in order to secure the permanency of said levee and work, it will build and operate upon said levee thrown up and built by it a railway, and to extend said railway in a continuous line through township 27, in Wayne county, to some eligible point on the St. Francois river, in said township. (3) And said railway company further agrees to cut down the timber on said line selected by it, 100 feet wide, across said swamp to the county line. * * * (6) It is further understood that the building of said levee, as aforesaid, and laying the iron over the same, and through said township, within...