Clevenger v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 28 March 1919
• Docket Number: No. 19980.,19980.
• Citation: 210 S.W. 867
• Parties: CLEVENGER v. CHICAGO, M. & ST. P. RY. CO.
• Court: Missouri Supreme Court

210 S.W. 867

CLEVENGER v. CHICAGO, M. & ST. P. RY. CO.

No. 19980.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Appeal from Circuit Court, Caldwell County; A. B. Davis, Judge.

Suit by Charles H. Clevenger against the Chicago, Milwaukee & St. Paul Railway Company. From decree for plaintiff, defendant appeals. Affirmed.

Fred S. Hudson, of Kansas City, for appellant.

D. B. Adams, of Hamilton, for respondent.

BOND, J.

I. Suit to quiet the title and recover possession of a strip of ground 1,200 feet long and 100 feet wide south of defendant's right of way, and of a like strip of ground on the north side of the same right of way.

The main facts of the case were agreed to: That the common source of title was William T. McDonald. That said McDonald and wife executed and delivered to defendant a warranty deed of date May 13, 1886, by which they sold to defendant, for $400, a strip of land 100 feet wide to be used as a right of way. This deed also contained the following statements in referring to such conveyance:

"Hereby conveying a strip of land fifty (50) feet wide on each side of the center line of the railway of said company as now" located and established, together with necessary width for excavations, embankments, depositing waste earth and borrowing pits, as follows: One hundred feet (100) on each side of said strip of said railway, from station 406 to station 418."

That the land described in said deed as being from station 406 to 418 is the land involved in this action. That on June 8, 1891, said McDonald and wife conveyed the land in question to Thomas Kelmel. That this deed contained the following clause:

"Except seven acres off the above land which has been heretofore deeded to the Chicago, Milwaukee & St. Paul Railway Company for a right of way across said lands."

That Thomas Kelmel conveyed said lands to Holmes L. Clevenger by a deed containing the same clause. That Holmes L. Clevenger conveyed said lands to P. J. Clevenger by a deed containing the same clause. That on June 5, 1900, P. J. Clevenger conveyed said lands to Charles H. Clevenger (the plaintiff herein) by a deed containing the same clause. That the fence of defendant through said land and between stations 406 to 418, in September, 1911, was moved out from the center line of the railroad, on both sides, to a distance of 150 feet, and that thereafter it inclosed the land in controversy.

The case was submitted on the agreed facts and oral evidence and without a jury. The court found that, prior to 1912, defendant erected and maintained fences through said land on both sides of the right of way, except at points where the toe of the slope was outside the 50-foot lines, and at such points fences had been maintained 150 feet from the center line of the right of way. The court further found that plaintiff was the owner in fee simple...