Dodd v. St. Louis & H. Ry. Co.
| Decision Date | 02 March 1892 |
| Parties | Dodd, Appellant, v. The St. Louis & Hannibal Railway Company |
| Court | Missouri Supreme Court |
Appeal from Ralls Circuit Court. -- Hon. T. H. Bacon, Judge.
Affirmed.
Harrison & Mahan for appellant.
(1) The court committed manifest error in giving instruction numbered 1, of its own motion in behalf of respondent. Appellant Dodd could neither object nor acquiesce in the entry on the land, or the building of the railroad, nor could he interfere with respondent's possession until the expiration of the life-estate of his mother, Maria Dodd. Bradley v. Railroad, 91 Mo. 500; Raume v Chambers, 22 Mo. 36; Miller v. Bledsoe, 61 Mo 96; Roberts v. Nelson, 87 Mo. 229. No rights or cause of action accrued to plaintiff until his mother's death. Dyer v. Brannock, 66 Mo. 391; Dyer v. Wittler, 89 Mo. 81. (2) There was no evidence upon which to base such an instruction. Mere inaction on the part of the plaintiff cannot be construed into an acquiescence on his part. It is not shown that Maria Dodd had any knowledge of the building of the road, except the bare presumption arising from the fact that she resided on adjacent land, and there is no evidence of any knowledge by any of the other heirs of Stephen Dodd. Walker v. Railroad, 57 Mo. 275; Railroad v. Smith, 78 Ill. 96; Armstrong v. City, 69 Mo. 309; Bradley v. Railroad, supra. This instruction is inconsistent, and conflicts with instruction, numbered 1, given by the court of its own motion, for appellant, and is for that reason fatally defective. Gay v. Gilliland, 92 Mo. 250; Frederick v. Allgaier, 88 Mo. 598; Thomas v. Babb, 45 Mo. 384; Stone v. Hunt, 94 Mo. 475; Martinowsky v. Hannibal, 35 Mo.App. 70; State v. Herrell, 97 Mo. 110. (3) The court committed error in giving instructions, numbered 2 and 3, on behalf of respondent; they submit the construction of the deed to the jury. It was the duty of the court to construe the written contract. Crawley v. Mullins, 48 Mo. 517; Gas Co. v. Ins. Co., 33 Mo.App. 348; Miller v. Dunlap, 22 Mo.App. 97. The fact that the railroad property was sold under foreclosure of mortgage, and the further fact of its being subsequently mortgaged by respondent, constitute no estoppel against this plaintiff.
James H. Orr for respondent.
(1) The evidence shows that the strip of land sued for had been in the possession of the defendant and those under whom it claims since 1870, more than ten years before the commencement of this suit, and plaintiff's claim of title, if any, was barred by the statute of limitations. Key v. Jennings, 66 Mo. 353; Bradley v. Railroad, 91 Mo. 493. And in this case there is no evidence as to any of the heirs of Stephen Dodd being married women at the time of the building of the railroad in 1870, nor at the time the lands of Stephen Dodd were partitioned in 1887, by which the land in question was set apart to the plaintiff. (2) The plaintiff was forty-one years old when the road was built in 1870. All the other heirs were over twenty-one years of age. He lived upon the land from 1870 and prior thereto until 1888 before commencing this suit. He knew the road was being operated at that time. He may have forgotten about the deed he made; permitted the company to build cattle-guards, fences, and put other valuable improvements thereon. Under such circumstances, ejectment will not lie. Kanaga v. Railroad, 76 Mo. 207. (3) Because of life-estate of Maria Dodd in the land in question, the plaintiff was not estopped from preventing waste against the land, or any unlawful entry or appropriation of it by a stranger. And the owners of the land, although having different interests, had the right to prevent such waste, unlawful entry or appropriation, or they could procure an appraisement or condemnation by mandamus. They were not without remedy, as claimed by appellant.
This is an action of ejectment for the recovery of a strip of land, one hundred feet wide, through the west half of the southeast quarter and east part of the northwest quarter of section 19, township 46, range 4, west, occupied by defendant for its railroad. Stephen Dodd owned this land at the time of his death in 1836, and it was in 1840 set off to his widow for her dower. The widow occupied it till her death, which occurred in 1886. Plaintiff was one of the children of Stephen Dodd, and after the death of said widow this land was set off to him in a partition proceeding between him and the other heirs of his father.
The defendant, in its answer, denied plaintiff's title and set up matter constituting an estoppel in pais. To sustain these two defenses defendant read in evidence a deed executed by plaintiff, dated May 23, 1870, by which he sold, conveyed and relinquished to the St. Louis & Keokuk Railroad Company the right of way, one hundred feet wide, through the west half of the southeast quarter of section 19, and also through two tracts of land in section 30 of said section, township and range in which deed were these stipulations: First. The grantor reserved the timber and the right to cultivate the land, not in actual use by said railway company, until it was fenced. Second. The company was to make necessary road crossings, fence the road as soon as the trains should be run, and in the meantime indemnify the grantors for all damage committed or suffered by it or its contractors or employes in the construction of the road, or for trespass or waste committed by laborers on the road by erection of shanties, stables or other buildings.
The defendant also introduced evidence tending to prove that the railroad was built in 1870 or 1871; that at that time plaintiff was about forty-one years of age and lived on said land, and continued to live, and still lives on it; that, from 1873, trains have run regularly over the road; that the construction of the road through said land cost about $ 10,000. Defendant company, for a valuable consideration, acquired the title to the railroad by intermediate conveyances from the St. Louis & Keokuk Railroad Company.
The verdict was for the defendant, and it is now assigned for error that the court misdirected the jury by telling them that, if plaintiff and those from whom he derived title acquiesced in the building of the railroad on said land, he could not recover.
It is well settled in Missouri that ejectment will lie where a railway company builds its road over land to which it has acquired no requisite title by condemnation or conveyance or license, express or implied. Walker v. Railroad, 57 Mo. 275; Bradley v. Railroad, 91 Mo. 493, 4 S.W. 427.
And it is equally well settled that a party, who, with full knowledge, stands by and permits a company to expend large sums of money in the construction of a railroad through his land without objection, forfeits his right of ejectment. Kanaga v. Railroad, 76 Mo. 207; Provolt v Railroad, 57 Mo. 256; Masterson v. Railroad, 72 Mo. 342; 5 Law. Rep. Ann. 183, and notes. This right is forfeited by virtue of the application of the doctrine of estoppel as well as the intervention of public interests. Property in a railway is peculiar. A railway may be likened to a chain, which is worthless with one link out. The ejectment of the company from a mile or half a mile of its track almost wholly destroys the value of the entire line. The land-owner knows this and when he...
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