Coates & Hopkins Realty Co. v. Kansas City Terminal Ry. Co.

• Decision Date: 17 November 1931
• Citation: 43 S.W.2d 817,328 Mo. 1118
• Parties: Coates & Hopkins Realty Company, Appellant, v. Kansas City Terminal Railway Company, Continental Illinois Bank & Trust Company and E. E. Amick, Trustees, Respondents; and St. Louis-San Francisco Railway Company; Chicago, Burlington & Quincy Railroad Company; Central Trust Company of New York and Oliver M. Spencer, Trustees; Kansas City, Fort Scott & Memphis Railway Company; Banking Trust Company, New England Trust Company, Guaranty Trust Company, Bankers Trust Company and N. A. McMillan, Appellants
• Court: Missouri Supreme Court

43 S.W.2d 817

328 Mo. 1118

Coates & Hopkins Realty Company, Appellant, v. Kansas City Terminal Railway Company, Continental Illinois Bank & Trust Company and E. E. Amick, Trustees, Respondents; and St. Louis-San Francisco Railway Company; Chicago, Burlington & Quincy Railroad Company; Central Trust Company of New York and Oliver M. Spencer, Trustees; Kansas City, Fort Scott & Memphis Railway Company; Banking Trust Company, New England Trust Company, Guaranty Trust Company, Bankers Trust Company and N. A. McMillan, Appellants

Supreme Court of Missouri

November 17, 1931

Appeal from Jackson Circuit Court; Hon. Thad B. Landon Judge.

Affirmed.

McVey & Freet for appellant Coates & Hopkins Realty Co.

(1) Under the law of Missouri, a railroad takes only an easement or a conditional fee, with reversion to the original grantees in the event of abandonment for railroad purposes. Allen v. Beasley, 297 Mo. 544; Chouteau v. Railroad Co., 122 Mo. 375; State ex rel. v. Railroad Co., 207 Mo. 103; Kellogg v. Malin, 50 Mo. 496; State ex rel. v. Railroad Co., 207 Mo. 54; State ex rel. v. Railroad Co., 112 Mo. 85; Venable v Railroad, 112 Mo. 103; State ex rel. v. Railroad Co., 138 Mo. 345; Railroad Co. v. Sandlin, 173 Mo.App. 384; Sec. 4555, R. S. 1929. (a) The deeds in this case conveyed an easement or determinable or base fee, the nature of which is fully set forth in U.S. Pipe Line Co. v. Railroad, 41 A. (N. J.) 759. (b) The words "voluntary grant" do not mean a deed without consideration, and the cases cited in the divisional opinion concerning the law of fraudulent conveyances have no application. (c) A voluntary grant is a conveyance made voluntarily, whether with or without consideration. A grant upon condition carries a consideration the same as if for money value. Baker v. Ry. Co., 122 Mo. 396; Chouteau v. Ry. Co., 122 Mo. 375; Land v Coffman, 50 Mo. 243; Jackson v. Thompson, 38 Wash. 282, 80 P. 454; 13 C. J. 898; 40 Cyc. 220. (d) The issue must be decided according to the law of Missouri. The authorities cited in the divisional opinion either support the Missouri rule or are controlled by specific statutes, or are not in point. (2) The condemnation decree terminated the easement or conditional fee interests of the railroads. (a) The Union Depot Company was not a railroad. It was organized under Missouri Statutes 1872, pp. 315, 315-E. The Union Depot Company could not hold or acquire any real estate except such as was actually necessary for its depot purposes. (b) Also the articles of incorporation of the Union Depot Company, the law and the condemnation decree and proceedings limited the title of the Union Depot Company to union passenger station purposes only. Constitution Sec. 7, Art. 12; Art. 2, Sec. 21. (c) The power of eminent domain is to be strictly construed. Tarkio v. Clark, 186 Mo. 285; St. Louis v. Gleason, 93 Mo. 33; 20 C. J. 534. (d) An easement may be condemned the same as any other interest in real property. 1 Thompson on Real Property, sec. 622; 19 C. J. 957; Currie v. Ry., 105 Me. 529, 75 A. 51. (e) The condemnation by the Union Depot Company for union passenger station purposes, and adverse user for depot purposes, extinguished the easement of the railroads. Central Wharf v. India Wharf, 123 Mass. 567; Hancock v. Wentworth, 5 Met. 446; Jones on Easements, sec. 843; Mussey v. Union Wharf, 41 Me. 34; Ballard v. Butler, 31 Me. 94; Washburn on Easements and Servitudes, sec. 701, p. 656. (3) The defendant Terminal Railway Company is a railroad company, with the additional charter right, under special statute, to operate a union passenger depot, as to which the railroad has only the same powers as a union depot company. Sec. 1002, R. S. 1919 (now Sec. 4813, R. S. 1929); Clark v. Santa Fe, 319 Mo. 865. (a) A union depot use is a different use from a railroad use. Railway Co. v. Hannibal Union Depot Co., 125 Mo. 82; K. & T. C. Ry. Co. v. N.W. C. & M. Co., 161 Mo. 288. (b) Property devoted to one public use may not be condemned for the same public use, but only for another and different use. State ex rel. v. Drainage District, 271 Mo. 429; 20 C. J. 600; M. & St. L. Ry. v. Railway Co., 63 N.W. 1035; K. C. Suburban Belt Ry. Co. v. Ry. Co., 118 Mo. 599; State ex rel. v. Superior Court, 173 P. 192; State ex rel. v. Superior Court, 47 Wash. 166, 91 P. 637. (4) The divisional opinion is in error in its theory of an appurtenant use and in holding that the Terminal Railroad is a mere appendage or adjunct to the Union Passenger Station. (a) We deny that there is any question in this case of appurtenant use. The mere fact of access to the passenger station, either primary or auxiliary access, over the defendants' railroad, is immaterial. (b) As to its Union Passenger Station, the defendant Terminal Railroad occupies the same position as though the Union Passenger Station was owned and operated by an independent company. (c) Under the statute (now Sec. 4813, R. S. 1929) a railroad company may construct and operate a union station, but in that connection it has the powers only of a union depot company formed under said section of the statute. (d) The opinion makes no distinction between the powers of a union depot company and of a railroad, but commingles the two, whereby the entire terminal is made a mere appendage to the Union Passenger Station. (e) The Union Passenger Station, as such, is a separate entity, both in law and in fact; it occupies its own yards and operates as a unit under a different control and course of business. While the lines of the Union Passenger Station connect at its yard boundaries with the defendants' railroad, that connection is no more than as though the connection was with any other railroad. The lands in suit cannot be included within the statutory phrase, "Union Passenger Station and its appurtenances." Jackman v. Railroad Co., 304 Mo. 319; Humphries v. McKissock, 140 U.S. 314. (5) The divisional opinion is in error in its statements as to the uses of the lands during the occupancy of the old Depot Company and as to the situation and consequences arising therefrom. (a) The freight uses were, under special contracts, confined to one track, and at all times subordinate to the passenger uses. (b) The additional use was under a mere license. The Union Depot Company could not, by license or otherwise, grant nor vest any title in the licensees greater than the title of the Union Depot Company. Sapp v. Ry. Co., 51 Md. 115; Rochdale Canal v. Radcliffe, 83 Eng. Common Law Rep. 287; Peirce v. Ry., 141 Mass. 481, 6 N.E. 96; Dillon v. Railroad Co., 67 Kan. 687, 74 P. 251; Robey v. Railroad Co., 142 N.Y. 176, 36 N.E. 1053; Neitzel v. Railroad Co., 141 P. 186. (c) The Union Depot Company could not by any kind of user, enlarge its powers, nor grant to others by contract or license, any title not within the objects of its creation. 19 C. J. 895; Grand Trunk Railroad Co. v. Valiear, 7 Ont. L. 364. (d) No title can be acquired by adverse possession to any property held for public use. State v. Warner, 51 Mo.App. 174; Columbia v. Bright, 179 Mo. 441; K. C. Rys. Co. v. Baker, 183 Mo. 312; 14a C. J. 499, sec. 321.

H. J. Nelson and Langworthy, Spencer & Terrell for appellant Chicago, Burlington & Quincy Railroad Company and Central Trust Company of New York.

(1) The Hannibal & St. Joseph Railroad Company, the Burlington's predecessor in title, acquired an indefeasible estate in fee simple by virtue of the deeds from Coates and Hopkins. (a) There was express statutory authority for the acquisition of such a title. Laws 1837, p. 240; Laws 1847, p. 156; Laws 1857, p. 162. (b) The deeds are equally plain in showing an intent to convey the entire fee simple estate. Kellogg v Malin, 50 Mo. 496; Chouteau v. Ry. Co., 122 Mo 375; Baker v. Ry. Co., 122 Mo. 396; Venable v. Railway Co., 112 Mo. 103; Nye v. Railroad, 113 Mass. 277. (c) Ample authority exists for holding that railroad corporations can acquire the fee simple title to real estate. Land v. Coffman, 50 Mo. 253; Whitehead v. Vineyard, 50 Mo. 30; Union Depot Co. v. Frederick, 117 Mo. 138; 33 Cyc. 167. (2) Even if the Hannibal & St. Joseph Railroad Company had not acquired an estate in absolute fee simple by virtue of the Coates and Hopkins deeds, nevertheless its interest would not be extinguished by the condemnation decree or by the subsequent user by the Union Depot Company. (a) The condemnation of the property for the purpose of erecting a union depot did not extinguish, but at most merely suspended, partially and for the time being, the railroad's interest therein. Boyce v. Ry. Co., 168 Mo. 583; Rio Grande Ry. Co. v. Stringham, 239 U.S. 44; Western Union Telegraph Co. v. Ry. Co., 195 U.S. 540; Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208; Northern Central Ry. Co. v. Ry. Co., 177 Pa. St. 142, 35 A. 624; Saddler v. Ry. Co., 204 Ala. 155, 89 So. 380; 21 C. J. 923-924; 20 C. J. 613; St. Louis, Hannibal & Kansas City Ry. Co. v. Union Depot Co., 125 Mo. 82; American Tel. & Tel. Co. v. Ry. Co., 202 Mo. 656; Nichols, "Eminent Domain" (2 Ed.) sec. 745. (b) The user by the Union Depot Company was a continuation of the use for general railroad purposes prior to 1877 by the Hannibal & St. Joseph Railroad Company. Hannibal & St. Joseph Ry. Co. v. Muder, 49 Mo. 165; 10 R. C. L. 44-45; 32 Cyc. 1471; State ex inf. Attorney-General v. Terminal Railroad Assn., 182 Mo. 284; Stevens v. Merchants Bridge Terminal Ry. Co., 152 Mo. 212. (c) There has been no proof of an abandonment by the Hannibal & St. Joseph Railroad Company of its right to use the land for general railroad purposes. 20 C. J. 1234; Kansas City & Southeastern Ry. Co. v. Railroad Co., 129 Mo. 62, 31 S.W. 451; Scarritt v. Railway, 148 Mo. 676, 50 S.W. 905; Hatton v. Railroad, 253 Mo. 660, 162 S.W. 27; Newton v. Railway Co., 115 F. 781. (3) The...