Chicago, B. & Q.R. Co. v. Dockery

• Decision Date: 27 March 1912
• Docket Number: 3,518.
• Citation: 195 F. 221
• Parties: CHICAGO, B. & Q.R. CO. v. DOCKERY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

195 F. 221

CHICAGO, B. & Q.R. CO. v. DOCKERY et al.

No. 3,518.

United States Court of Appeals, Eighth Circuit.

March 27, 1912

J. G Trimble (W. P. Hall and Campbell & Ellison, on the brief) for plaintiff in error.

Edward Higbee (Higbee & Mills, on the brief), for defendants in error.

Before ADAMS and SMITH, Circuit Judges, and REED, District Judge.

REED District Judge.

This action is by the defendants in error, who will be called the plaintiffs, to recover of the Railroad Company $5,000 as liquidated damages for an alleged breach of a contract made by its predecessor to maintain a depot and stockyards or pens upon land acquired for that purpose from the remote grantor of the plaintiffs, with whom said contract was made. The defendant may be considered as the company with whom the agreement was made, for it assumed the obligations of its predecessor. The cause was tried to the court without a jury, and resulted in a judgment for the plaintiffs for the full amount claimed. The defendant brings error.

The facts are substantially as follows: In 1902, the defendant's predecessor, the Iowa & St. Louis Railway Company, was building a railroad through the county of Adair in the state of Missouri, and over or through a body of lowland in the valley of the Chariton river in said county containing some 2,000 acres owned by one Hilbert. In consideration of a right of way over such land, the Railway Company agreed to pay Hilbert $2,250; and to build the dump or grade of the road at least four feet above the level of the surface of the land; also to build upon the right of way or lands adjacent thereto a depot and stockyards or pens, and maintain the same for a period of 10 years after they were completed. May 26, 1902, Hilbert made a deed to the company of a strip of land 100 feet wide through said premises, as a right of way, the strip containing about 18 acres; and later, another strip 150 feet wide and 1,325 feet long west of, and adjacent to, the right of way upon which to build the depot and stockyards. The right of way deed, after reciting the consideration of $2,250, contains an agreement, the material parts of which are as follows:

'As a further consideration the second party (the Railway Company) agrees and obligates itself, its successors and assigns, to erect and maintain a solid grade of uniform height of four feet above the level of the surface of the aforesaid right of way, the same to be built solid from the creek in Adair county, known as 'Blackbird creek' through said premises without any opening therein (for approximately two and one-half miles); and where said grade on the east side thereof touches the creek, a solid strip of earth shall be left for a distance of one hundred feet from the center of the channel of said creek without any openings therein, and be maintained by the company. * * * The said first party, his heirs or assigns, shall have the right at any time to join said grade on the east with a levee of the same height and connect thereto; and the party of the second part agrees and obligates itself, its successors and assigns, to built a depot to cost not less than $500 and stockyards and pens, and complete the same within one year from the date of the deed, and maintain said stockyards and station for a period of ten years from the time said stockyards are erected; and in the event that any of the conditions herein named are not fulfilled and kept by said second party, then said second party, its successors and assigns shall pay the said first party liquidated damages (or to his heirs or assigns) in the amount of five thousand dollars ($5,000), which said sum of $5,000 is hereby made a lien and charge upon the aforesaid lands herein conveyed. * * * The second party further agrees to put in all necessary road or gate crossings over its track or roadbed at such points or places as the first party or his heirs and assigns may deem necessary through the aforesaid premises.'

The Railway Company constructed the embankments and grade of the road as stipulated; and shortly after built a depot, and stockyards or pens as agreed, and completed them about February 1, 1903, named the station Hilberton, and placed an agent in charge thereof. The depot was maintained with an agent in charge until June 14, 1904, when the agent was removed, because of insufficient receipts of the station to maintain him there, the station closed, and the records removed to and placed in charge of an agent at Collinsville, a station about two miles distant from Hilberton, and the account of all freight shipped to and from Hilberton thereafter was kept at the Collinsville station. Some time in 1903, a store building and small residence were constructed near the depot, and a stock of goods placed in the store building by some one for sale at retail. No other buildings, except the depot, were ever erected at that place. The business of the store was not profitable, and the goods were removed in 1905 or 1906, and the store building moved away about a year after. In February or March, 1907, the company removed the depot building and stockyards; and only three or four cars of live stock and some hay and wood were afterwards shipped from the station. The receipts of the station during 1903 and 1904 were about $925. Of this amount less than one-fourth inured to the benefit of the company, the other portion going to other roads connecting with the defendant's road some 6 and 26 miles, respectively, from Hilberton.

October 12, 1904, four months after the removal of the agent from and the discontinuance of the railway office at, Hilberton, Hilbert made a deed of assignment under the Missouri statute conveying this body of land, and other lands and personal property, to an assignee for the benefit of his creditors, and excepted from such conveyance the right of way granted to the Railway Company. In August, 1905, the assignee under order of court sold the assigned property, and the plaintiffs purchased 1,840 acres of the land, outside the right of way, for $16 an acre. Most of the land is subject to frequent overflow from the river or creek,...