Dickson v. St. Louis & K. R. Co.

• Decision Date: 28 March 1902
• Citation: 67 S.W. 642,168 Mo. 90
• Court: Missouri Supreme Court
• Parties: DICKSON et al. v. ST. LOUIS & K. R. CO.

67 S.W. 642

168 Mo. 90

DICKSON et al. v. ST. LOUIS & K. R. CO.

Supreme Court of Missouri, Division No. 2.

March 28, 1902.

RAILROAD RIGHT OF WAY — DEEDS — DESCRIPTION — FORFEITURE.

1. Where a landowner grants a railroad a right of way over his land, on condition that on failure or abandonment of the "enterprise," the land granted shall revert to the grantor, a deflection of the road from the granted way does not work a forfeiture.

2. Where one who has granted a right of way to a railroad sues to set aside the deed, on the ground that a portion of the granted way was deflected from, and that such deflection constituted a breach of a condition subsequent in the grant, and he offers in evidence the plat annexed to his deed to the railroad, he may not repudiate the same in his argument.

3. Plaintiff, who had granted a right of way to a railroad, sued to set aside the deed, on the ground that the road had deflected from the way granted, and that such deflection was a breach of a condition subsequent. It was shown that the deed was made after the route was surveyed and was known to plaintiff, and that for three years he had acquiesced in the location. An engineer, called for defendant, testified that the road was on the calls of the deed, but by the testimony of plaintiff's engineer it had deflected from the way on the last call. It did not appear where such engineer found his starting point, and to reach his conclusion he was forced to make the distance of the last call several feet longer than that given in the deed, but following the call for distances as given in the deed the road lay within the way. Held, that the evidence did not warrant a decree for plaintiff.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by E. P. Dickson and others against the St. Louis & Kirkwood Railroad Company. From a decree for complainants, defendant appeals. Reversed.

Dawson & Garvin and Leonard Wilcox, for appellant. Wm. F. Broadhead, for respondents.

GANTT, J.

The defendant owns and operates an electric railroad from St. Louis to Meramec Highlands. Its line was projected through certain lands of the plaintiff in St. Louis county, and after the route had been surveyed and selected for its roadbed and right of way the plaintiff executed and delivered defendant a deed to said right of way, describing it as "a right of way for railroad purposes through and along a strip of ground fifty feet wide and beginning at the eastern line of the property herein described, 13 feet from the northeast corner, and running south, 71° 5' west, 536 feet to an angle, thence south. 55° 57' west, 638 feet to an angle, thence south, 35° 40' west, 377 feet to an angle, thence 46° 17' west, to the western line, 26 feet, to the center of Collins road, and being 25 feet on each side of the central line conveyed, as shown, or as may be hereafter indicated, not exceeding a distance of fifty feet one way or the other. The property through which this right of way is granted is bounded on the north by Hasney; on the east by Williams, Crane, and Loese; on the south by Collins; and on west by the Collins road. Upon condition, however, that the grantee herein, its successors and assigns, shall construct and maintain a single or double track railroad, to be operated by electricity for motive power or other approved power, except steam, and, upon the failure or abandonment of said enterprise by the grantee herein or its successors and assigns, that the privilege herein and the property conveyed shall revert to and be fully vested in the grantors, their legal representatives or assigns; and conditioned that the construction of such road be fully completed and in operation in or before the year 1896." It was stipulated on the trial that the land described in the deed is a part of the S. W. ¼ of S. E. ¼ of section 31, township 45, range 6 E. in St. Louis county. In this suit plaintiffs seek to have said deed canceled, because, they say, the conditions in said deed were broken by defendant, and the deed is now a cloud on plaintiff's title. This was denied by defendant.

It was abundantly shown on all sides that the defendant company built its railroad and had it in operation prior to 1896, and that it has never abandoned the enterprise, but was operating the road at the time of the trial. It is too clear for dispute that the one condition of forfeiture mentioned in the deed, to wit, "the failure or abandonment of the enterprise by the grantee or its successors," has not been broken. Evidently, when they used the word "enterprise" they referred to the railroad as an entirety, not the failure to occupy a few feet of the recorded and projected route through plaintiff's land. It is not a condition of forfeiture anywhere in the deed that a deflection of a few feet on some part of the line shall work a forfeiture of the title granted by the deed. And yet this is obviously the theory upon which this suit is brought. The plaintiff testified that he saw and knew the route proposed through his land, and made the deed after the survey. He saw the roadbed constructed, and thought for three years that it was on the exact line defined in his deed, and only learned it was not by a survey made by Von Borck in 1897, which survey, if conceded to be correct, shows the road was constructed on the right of way granted by the deed and attached plat read in evidence by plaintiff, except over the distance from the third and last angle to the end, which in no event exceeds 300 feet. For 1,200 or 1,300 feet from the...