Cochran v. Missouri, Kansas & Texas Railway Company
| Decision Date | 05 May 1902 |
| Citation | 68 S.W. 367,94 Mo.App. 469 |
| Parties | J. R. COCHRAN, Respondent, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. H. C. Timmonds, Judge.
AFFIRMED si.
Geo. P B. Jackson for appellant.
(1) In view of the agreement made by plaintiff, this defendant can be treated as having wrongfully entered upon the strip of land in question. And if plaintiff's deed to Medlin did not convey this strip, then he would only be entitled to recover damages of the same nature and to the same extent as compensation might be awarded in a condemnation proceeding. Baker v. Railroad, 57 Mo. 265; Bradley v Railroad, 91 Mo. 493; McClellan v. Railroad, 103 Mo. 295; Webster v. Railroad, 116 Mo. 114. (2) There was no abandonment of the strip of ground as a right of way for the railroad now operated upon it. Morrill v Railroad, 96 Mo. 174; Railroad v. Railroad, 129 Mo. 62. (3) The improvement having been made at the cost of the original company, or of its creditors who were paid by the sale of the property to the second company, which laid the track, the plaintiff is not now entitled to recover anything on account of the value of such improvements from this defendant as the subsequent purchaser of that road. McClellan v. Railroad, 103 Mo. 311. (4) But defendant claims, the plaintiff was not entitled to recover at all because his deed to Sallie Ann Medlin conveyed the land in dispute, and by the subsequent conveyance the title to the same became vested in defendant. Under the rule the deed to Mrs. Medlin conveyed the land to the center of the railroad right of way, subject only to the easement for the railroad. Bissel v. Railroad, 23 N.Y. 61; Mott v. Mott, 68 N.Y. 246; Geer v. Railroad, 37 Hun 346; Cox v. Railroad, 48 Ind. 178, 3 Kent's Com., 349. (5) It was for the court to construe the deed and declare its meaning and effect. There was no conflicting testimony concerning any extrinsic facts which might affect the question of intention of the parties. The court therefore erred in submitting that question to the jury. Lime & Cement Co. v. Metal Co., 77 Mo.App. 21; Ford v. Dyer, 148 Mo. 528; State ex rel v. Lafaivre, 53 Mo. 470; Chapman v. Railroad, 114 Mo. 542; State ex rel. v. Donnelly, 9 Mo.App. 526; Soap Works v. Sayers, 55 Mo.App. 15; Matthews v. Danahy, 26 Mo.App. 660; Edwards v. Smith, 63 Mo. 119; Hunt v. Hunter, 52 Mo.App. 263; Smith v. Van Wyck, 40 Mo.App. 522. (6) The intention of the parties must govern, and that intention the court must gather from the face of the instrument and the circumstances under which it was made. Carney v. Water & Light Co., 76 Mo.App. 532; Del Bondio v. Dold Packing Co., 79 Mo.App. 465; Bradshaw v. Bradbury, 64 Mo. 336; 17 Am. and Eng. Ency. of Law (2 Ed.), p. 13; Hatch v. Douglass, 48 Conn. 116; 1 Greenl. on Ev. (13 Ed.), sec. 278; Dana v. Fiedler, 12 N.Y. 40; Nelson v. Ins. Co., 71 N.Y. 453.
Scott & Bowker for respondent.
(1) The intention of the parties is to govern in the construction of a deed, and in determining this the circumstances surrounding the parties and the subject-matter are to be taken into consideration. If the descriptive monuments are ambiguous, parol evidence may be received to explain what the parties meant; and if there is a controversy over these extrinsic facts, it is for the jury. Whitehead v. Ragan, 106 Mo. 231; Long v. Timms, 107 Mo. 512; Railway v. Frowein, 163 Mo. 1; Thorn Cement Co. v. St. Louis Co., 77 Mo.App. 21. (2) Taking possession of another's land without authority from him to do so, is illegal and wrongful, even though the act was done in pursuance to a purchase from another unlawful taker. Ragan v. Railway, 144 Mo. 623. (3) Where land is taken either by condemnation or wrongfully for a public use, the owner can recover the value of his land for any use to which it might be put. Mississippi Bridge Co. v. Ring, 58 Mo. 491; Webster v. Railway, 116 Mo. 114; Railway v. Heiger, 139 Mo. 315.
--This action is to recover the value of a strip of land fifty feet wide running across, near the south end of an eighty-acre tract. Plaintiff recovered judgment in the trial court.
It appears that plaintiff was the owner of the eighty acres of land and in possession thereof. That in 1888 a railway corporation known as the Kansas City, Rich Hill and Eldorado Railway Company began the construction of a railway, and for that purpose agreed to pay plaintiff for a right of way, one hundred feet wide, through that and other land, two hundred and fifty dollars, one-half cash and one-half in six months. That company failed to make the payment and did not take up the deed which plaintiff had had prepared for delivery. Notwithstanding this, that company went upon the land against plaintiff's objection and made cuts and fills for a roadbed.
That company afterwards failed and abandoned the land without having built the road. Plaintiff retook possession of the strip, fenced it in and used it for pasture down to 1898, when another corporation, known as the Kansas City, Rich Hill and Southern Railway Company, against plaintiff's objection, entered on the strip, tore down his fences and constructed a railroad thereon. This road was afterwards purchased by defendant, which now operates a railway thereon.
The right of way went through the eighty acres near the south end, the greater part (about seventy acres) of the land was north of the right of way. Plaintiff sold that part to Sallie M. Medlin "lying north of the railway survey of the Kansas, Rich Hill and Eldorado Railroad, containing seventy acres more or less." Plaintiff also sold to T. J. Pearce eight acres on the south, describing it as follows: "All that part of the E. 1-2 of the S.W. 1-4 of Sec. 29, T. 36, R. 29, that lies south of the right of way of the K. C., Rich Hill and Eldorado R. R. containing eight acres more or less."
It is contended by defendant that plaintiff has shown no interest in the subject-matter of this action, since according to defendant's view he conveyed the strip by his deed to Sallie M. Medlin. When land is bounded by a street or non-navigable stream or lake, the boundary line is presumed to be the center of the street, or stream, or lake. But if the description discloses an intention not to convey to the center, that intention will control. Mott v. Mott, 68 N.Y. 246; Ins. Co. v. Stevens, 87 N.Y. 287; Kirkpatrick v. Yates Ice Co., 45 Mo.App. 335; Hardin v. Jordan, 140 U.S. 371, 35 L.Ed. 428, 11 S.Ct. 808. And if the description as written, construing it most strongly against the grantor, leaves the intent in doubt, the court may properly leave the fact to be ascertained by a jury.
The description in controversy is "all that part of the" eighty acres "lying north of the railway survey . . . containing 70 acres of land more or less." Each party introduced evidence of surveyors and civil engineers to show what the expression "railway survey," in this connection meant. These witnesses, in a general way, stated the view favorable to the party calling them. The court submitted the meaning as intended by the parties to the jury. It seems to us that such action by the court was as much as defendant could ask for. The most that defendant could reasonably claim in this situation of the case at this...
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