Childs v. The Kansas City, St. Joseph & Council Bluffs Railroad Company

• Decision Date: 03 July 1893
• Parties: Childs v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant
• Court: Missouri Supreme Court

23 S.W. 373

117 Mo. 414

Childs v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri, First Division

July 3, 1893

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Plaintiff had judgment on the circuit, and defendant appealed at a subsequent term, after his motion to set aside the judgment (filed more than a month after the latter was rendered) had been overruled. That motion was as follows, viz:

"Now comes the defendant and moves the court to set aside the judgment rendered at the present term of this court, in the above entitled cause, and as the grounds of its motion states:

"1. That there is no equity in the bill.

"2. That the petition herein fails to state facts sufficient to constitute a cause of action.

"3. That upon the record the judgment is erroneous.

"4. That the petition herein affirmatively shows that the plaintiff and defendants are not tenants in common, in that it shows that the relative rights of the defendant and the owners of said land, were of such a nature and character that if any remedy remained to plaintiff, or to his grantors, such remedy was a right of action against the defendant for the value of the easement which had been appropriated.

"5. The basis of plaintiff's suit is that Hannah Parsons, or her heirs, were never paid compensation for the lands belonging to them which had been appropriated. The bill fails to disclose whether the entry and original taking and damage was done during the lifetime of Hannah Parsons, or after her death, and, hence, fails to show that plaintiff has any action against defendant.

"6. If it be conceded that Hannah Parsons, or that her heirs, had a cause of action against the defendant, or against its predecessor, the bill fails to show that plaintiff succeeded to their right of action.

"7. The petition fails to state facts sufficient to show that plaintiff has any right of action whatever for the easement taken and appropriated for railroad purposes out of the land described in the petition, during the time that said land was owned by George S. Park and the heirs of Hannah Parsons, as tenants in common, or for any damages sustained by either Park or the Parsons during their ownership, by reason of such appropriation or any occupancy subsequent thereto.

"8. The petition affirmatively shows that defendant obtained an easement over said land from the party holding the fee simple title thereof; that the plaintiff took subject thereto; that the only right which Park intended or attempted to transfer by his deed to plaintiff was the right to the compensation which it was claimed was due to the Parsons heirs. This was assigned without recourse by the said Park, and only so far assigned 'as said Park was able to transfer his rights thereto.' The bill shows that the said Park never had any rights thereto.

"9. The petition fails to state facts sufficient to constitute a cause of action between plaintiff and defendants as tenants in common, or any ground for accounting between them as such.

"10. The petition shows on its face that plaintiff, if he had any right of action against the defendant, has an adequate remedy at law. The record shows that plaintiff and defendant if they had ever been tenants in common, had ceased to be such before the filing of the present petition. The assignment by a tenant in common to his right for an accounting, makes said right cognizable only in a court of law; plaintiff therefore, should not have been permitted to file a bill in equity for an accounting as an amendment to the original and first amended petitions herein, each of which stated a cause of action at law.

"11. The court erred in overruling defendant's motion to strike out the supplemental bill filed herein.

"12. The record shows on its face that the plaintiff recovered upon a cause of action which he did not own or have at the commencement of this suit.

"13. The record shows the defendant was charged and a recovery had against it as a tenant in common, during a period of time in which the bill affirmatively shows that plaintiff and defendant did not so hold the land.

"14. The petition prays that an accounting be had for rents and profits recovered by defendant as a tenant in common, from the common property during a specified time; and that there was no tenancy in common during nineteen-twentieths of the time specified. The evidence failed to show that any profits were received during the remaining one-twentieth of the time. Yet the plaintiff recovered for all profits received during the entire time specified. The record shows that the plaintiff recovered as a tenant in common, owning one-half of the right of way, while the petition shows that he only owned one-fourth of the interest claimed.

"15. The record shows that a recovery was had in this case by plaintiff against the defendant as a tenant in common, for the mere taking and appropriation by the defendant of material from the common property."

"17. The judgment is not responsive to the issues stated in the pleading, or to the cause of action stated in the petition herein.

"18. Because the judgment is against the law.

"19. Because the judgment is against the evidence.

"20. There was a total failure of proof."

The other essential facts are given in the opinions.

Affirmed.

Spencer Burnes & Mosman for appellant.

(1) The bill does not state facts which warrant the court in granting the relief awarded in the judgment rendered in the cause. A judgment must be responsive to the issues made in the pleadings. So a party will not be permitted to try his cause on one theory in the trial court, and then, if beaten on the ground of his own choosing, spring a fresh theory on his adversary in this court. Bray v. Seligman, 75 Mo 31; Clements v. Yeates, 69 Mo. 623; Stix v. Mathews, 75 Mo. 96; Summers v. Rogers, 90 Mo. 330. (2) The judgment is erroneous on the record proper because even as tenants in common, plaintiff was not entitled to recover for the defendant's use and occupation of the right of way. Before a cotenant can be held personally liable for rent through his own use and occupation of land, a special agreement to that effect must be shown. Sargeant v. Parsons, 12 Mass. 149; Evarts v. Beach, 31 Mich. 135; Ragan v. McCoy, 29 Mo. 366; Dodd v. Barry, 15 Mo.App. 595. Here the right of way is for railroad purposes and it can be used for no other. Davenport v. Lamison, 21 Pick. 74; (3) Plaintiff and defendant are not tenants in common; because the deed made by Park to the defendant was, first, his express consent to the use of the land by the defendant as a railroad right of way; second, his express waiver of immediate payment of the balance of the compensation and his express consent that the unpaid portion of the compensation should be treated "as a mere debt." "By such consent and permission they have yielded to the company the permanent right of occupancy upon and over the land, subject only to compensation which they are at liberty to exact or waive altogether." Railroad v. Strange, 23 N.W. 432; Provolt v. Railroad, 57 Mo. 263; Hosher v. Railroad, 60 Mo. 329; Kanaga v. Railroad, 76 Mo. 213; Hawlin v. Railroad, 61 Wis. 515; Prybylowiez v. Railroad, 17 F. 492; Harlow v. Railroad, 41 Mich. 338. The right of the railroad company in cases where there is such consent, "comes not through this proceeding (of condemnation), but by its original entry and appropriation without objection." Lawrence's Appeal, 78 Pa. 365; Davis v. Railroad, 114 Pa. 312; Lewis v. Railroad, 11 Rich. (S. C.) 91; Moore v. Boston, 8 Cush. 278. (4) Plaintiff and defendant cannot be held to be tenants in common of the right of way because the deed from Park to defendant vested in it title to the entire right of way. The deeds do not disclose any intent on the part of the parties to create a tenancy in common.

Hugh C. Ward, Frank Hagerman and Warner, Dean, & Hagerman for respondent.

(1) When, on July 6, 1872, plaintiff went into possession, under a bond for a deed, he became in equity the absolute and beneficial owner of all the interest of the vendors. 1 Pomeroy's Eq. Jur., sec. 368. Lewis or Eminent Domain sec. 318. (2) All the damages done from the time of the contract vest absolutely in the vendee under the bond, especially where it appears at the trial that the legal title was in him. Pinkerton v. Railroad, 109 Mass. 527; Railroad v. Ingalls, 15 Neb. 123; Kuhn v. Freeman, 15 Kan. 423, 426; Railroad v. Wilder, 17 Kan. 239, 246. (3) If Park had any cause of action it was assignable. Chouteau v. Boughton, 100 Mo. 406. (4) A land owner whose property has been taken has various remedies. He can maintain injunction to prevent the maintenance of the road (Lewis on Eminent Domain, secs. 618, 631, 634 and 647), or trespass for the wrongful act in entering (Ibid. secs. 318, 649); or he can elect to treat the act of the road as a permanent appropriation and sue as for breach of an implied contract. W. I. v. Co., 112 U.S. 645; Cohen v. Railroad, 34 Kan. 158. (5) The acquisition of title by condemnation does not condone a trespass by the railroad in originally entering without consent. Powers v. Hurmert, 51 Mo. 136; Railroad v. Randolph Town Site Co., 103 Mo. 451; Lewis on Eminent Domain, sec. 318, and authorities cited. (6) And the rule is well settled that even though the railroad company enter with consent, the title to the land does not pass until a compensation is actually made. Walther v. Warner, 26 Mo. 277; Bradley v. Railroad, 91 Mo. 501. Such is the express mandate of the constitution. (Const. art. 2, sec. 21. (7) Tested by these considerations, it must be plain that the railroad company using the land from 1872 to 1882 without a shadow of title, and permanently destroying the value of...