Cape Girardeau & T. B. T. R. Co. v. St. Louis & G. Ry. Co.

• Decision Date: 29 June 1909
• Citation: 222 Mo. 461,121 S.W. 300
• Parties: CAPE GIRARDEAU & T. B. T. R. CO. v. ST. LOUIS & G. RY. CO.
• Court: Missouri Supreme Court

121 S.W. 300

222 Mo. 461

CAPE GIRARDEAU & T. B. T. R. CO. v. ST. LOUIS & G. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 29, 1909.

1. EJECTMENT (§ 82) — SOURCE OF TITLE — PROOF.

Where, in ejectment, defendant recognized plaintiff as the owner, and admitted that defendant's rights, whatever they were, had been derived from plaintiff, plaintiff was not bound to deduce title from the government.

2. LICENSES (§ 58) — REVOCATION — CONSIDERATION.

While a mere license is revocable under all circumstances and at any time, a license may become an agreement on valuable consideration, as where its enjoyment must necessarily be preceded by the expenditure of money, and where the grantee has made improvements and invested capital in consequence thereof, and has become a purchaser for a valuable consideration, in which case it is not subject to revocation.

3. EJECTMENT (§ 23) — LICENSEE.

Where defendant railroad company entered on plaintiff's land, and laid tracks under a written agreement granting permission to do so, and offering later to come to an amicable agreement with reference to a transfer of the land satisfactory to both parties, plaintiff could not recover the land thereafter in ejectment.

4. ESTOPPEL (§ 110) — EQUITABLE ESTOPPEL — PLEADING.

Equitable estoppel, or an estoppel in pais, is not available as a defense, unless pleaded.

5. APPEAL AND ERROR (§ 197) — FAILURE TO PLEAD — OBJECTIONS IN TRIAL COURT.

Where, in ejectment, evidence raising an equitable estoppel or an estoppel in pais was admitted without objection, it was too late for plaintiff to raise on appeal the objection that the defense was not pleaded.

6. EJECTMENT (§ 127) — RENTS AND PROFITS — DAMAGES.

Rents and profits by way of damage were not recoverable in ejectment at common law; plaintiff's remedy after recovery in ejectment being by trespass for rents and profits.

7. EJECTMENT (§ 127) — JUDGMENT — RENTS AND PROFITS.

Where in ejectment, and for damages as an incident thereto, as authorized by Rev. St. 1899, §§ 3058, 3066, 3068 (Ann. St. 1906, pp. 1758, 1764, 1765), the petition did not allege the relation of landlord and tenant, and plaintiff did not recover possession, a judgment in his favor for mesne rents and profits as damages was unsustainable.

Appeal from Circuit Court, Scott County; H. C. Riley, Judge.

Ejectment by the Cape Girardeau & Thebes Bridge Terminal Railroad Company against the St. Louis & Gulf Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. F. Evans and Moses Whybark, for appellant. Giboney & Houck and Jno. A. Hope, for respondent.

GANTT, P. J.

This is an action of ejectment begun in the circuit court of Scott county on March 2, 1904, in which judgment was rendered for the plaintiff for possession of the premises and $3,000 damages. From that judgment the defendant has appealed to this court.

The land involved in the litigation is described as follows: "A strip of ground 100 feet wide out of United States private survey No. 794, in townships 29 and 30, range 14 east, 50 feet on either side of the following described center line, to wit: Beginning at a head block on the main line track of the St. Louis & Gulf Railway, which head block is about 900 feet south of the intersection of the center line of said main track with the division line between townships 29 and 30; thence in a northerly direction on a 7 degree and 30 minute curve 40 feet to the point of curve of said curve; thence north 6 degrees east 2,480 feet to the point of tangent of a 2 degree curve; thence in a northerly direction on said 2 degree curve 900 feet to the southern boundary line of the Hobbs land; excepting from said strip so much thereof as is now occupied by the main line track of said St. Louis & Gulf Railway, leaving 7.2 acres, more or less, involved in this suit." Ouster was laid as of the ____ day of ____, 1902. Plaintiff averred damages by reason of injury and waste by digging of the soil and making excavations and embankments thereon, and for the wrongful detention of the property to the amount of $10,000. Monthly rents and profits were alleged to be of the value of $2,000. An amended answer, filed at the October term, 1905, was a general denial.

The evidence on the part of the plaintiff was, first, a deed from John H. Crowder, Louis B. Houck, and Giboney Houck to the plaintiff railway company, of date April 28, 1902, for the tract of land which includes the land involved in this suit. Plaintiff also introduced in evidence, without objection, a deed from John H. Crowder, Louis B. Houck, and Giboney Houck to the plaintiff railway company, of date September 15, 1902, and recorded on September 19, 1902, to a tract of land described as all that parcel of said tract of land lying east of Houck's Missouri & Arkansas Railroad now the St. Louis & Gulf Railroad, which has heretofore not been conveyed to the said Cape Girardeau & Thebes Bridge Terminal Railroad Company, and extending from the north line of survey 794 to the land now owned by Matthew Rose in section 2, Scott county, Mo., and which said land is nereby conveyed to the said railroad company to establish, maintain, and operate railroad yards, and for railroad purposes, and for any other purposes whatever, and with the right of changing water courses, and with the right of cutting trees that may stand outside of the said land hereby conveyed, and which might endanger said railroad tracks built on said land, or the train operated thereon, and all of which land is situated in and a part of survey 794, township 30 N., range 14 E., fractional section 2, township 29 N., range 14 E. Plaintiff next introduced in evidence a notice dated the 1st day of July, 1905, signed by the St. Louis, Memphis & Southeastern Railroad Company and St. Louis & Gulf Railway Company, by Moses Whybark, their attorney, which said notice is in words as follows: "Cape Girardeau & Thebes Bridge Terminal R. R. Co., Plaintiff, v. The St. Louis & Gulf R. R. Co., Defendant, and Cape Girardeau & Thebes Bridge Terminal R. R. Co., Plaintiff, v. The St. Louis, Memphis & Southeastern R. R. Co., Defendant. Actions of ejectment in the circuit court of Scott county, Missouri. To the Above-Named Plaintiff in the Above-Entitled Causes: You are hereby notified that the condemnation suit instituted by the St. Louis, Memphis & Southeastern Railroad Company in the circuit court of Scott county, Missouri, against you, and wherein commissioners were appointed by that court at the last regular term, was dismissed by the plaintiff on the 9th day of June, 1905. And you are further notified that the defendants in the above-entitled causes now pending in the circuit court of Scott county, no longer having use for the possession of so much of the premises sought to be condemned in the condemnation suit aforesaid, and which land so sought to be condemned is a portion of the premises sued for by you in the said ejectment suits, hereby surrender to you the possession of the same, and release to you all the rights they required to the possession thereof under the permissions, licenses and agreements heretofore granted by you to said defendants, or either of them." Said notice bore the following indorsement: "I hereby certify that I served the within notice on July 3, 1905, in the city of Cape Girardeau, Cape Girardeau county, Missouri, by delivering to Giboney Houck, president of Cape Girardeau & Thebes Bridge Terminal R. R. Co., and to John A. Hope, attorney for said railroad company, each a true copy of the same. Willis Martin, Marshal of the City of Cape Girardeau."

Mr. Giboney Houck testified that he knew the Cape Girardeau & Thebes Terminal Railroad Company, which owned the Cape Girardeau & Thebes Terminal Railroad, in course of construction, from Cape Girardeau to a point where the Southern Illinois and Missouri bridge terminates on the west side of the river, and knew the land sued for, and this defendant entered upon it in November, 1902, and it was notified on November 1, 1902, not to go on the land, or, if it had begun work, to discontinue it. This notice was given to Mr. Joshua Elder, vice president and general manager of the defendant railroad company, and also to Major Brooks, its chief engineer, and was signed by John H. Crowder, plaintiff's president. The notice was served by Mr. L. B. Houck, and himself and his father, Louis Houck, had no connection whatever with the plaintiff railroad company. On cross-examination he stated that the plaintiff company began the construction of this road immediately after it was organized. That it commenced to buy right of way and survey the land from Cape Girardeau to the terminal of the western point where the bridge terminated on the west side of the river, and the road was located immediately where the western approach of the Thebes bridge is located, but they did not locate the line where the bridge was to be located, nor locate any road where the land sued for is situated, as that was required for yards, and it was expected to get over this land to the elevation of the bridge by principles of engineering, but they had put nothing in there. That the defendant was in possession, and crossed this property diagonally. He found out afterwards that the bridge company expected to construct its approach over the same land that it had originally surveyed and laid out for railroad, but at the time they made the survey for the plaintiff the bridge company, so far as he knew, had not located any land nor filed a profile in Scott county. That he and Mr. Crowder and L. B. Houck bought the land from Stone and filed their profile on the 27th of April, 1902, but had purchased it on the 23d or 24th of April. They were morally certain that the bridge was going to be located at the point where it is now located on the west side, and they bought the land because of that fact. They have been in litigation with the bridge company ever since then. T...