Eighme v. Indiana, Bloomington & Western Railroad Company
| Decision Date | 05 March 1923 |
| Citation | 249 S.W. 717,213 Mo.App. 342 |
| Parties | EDNA EIGHME, PEARL McGUIRE and WILLIAM DUNLAP McGUIRE, Appellants, v. INDIANA, BLOOMINGTON & WESTERN RAILROAD COMPANY, and CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY, Corporations, Respondents |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Thos. J Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
C. W Prince, E. C. Hamilton, E. A. Harris and Jas. N. Beery for appellant.
Marley & Reed for respondents.
--This is an action to recover the value of a lot in the City of Troy, Ohio. The facts of record are that on and prior to October 22, 1872, one William Dunlap was the owner of the lot in question, and that on said date he conveyed the same to his daughter Emma McGuire "and the heirs of her body forever." On July 16, 1881, Emma McGuire and her husband conveyed the lot by warranty deed to the defendant, the Indiana, Bloomington & Western Railroad Company. In 1885 this railroad went into the hands of receivers which action terminated in foreclosure and the sale of the lot in question to Frederick Olcott, et al., and in 1887, the lot was conveyed to Chas. W. Fairbanks, trustee, who in turn during the same year, conveyed it to the Springfield & Western Railway Company. Thereafter and during the same year, the Springfield & Western Railroad Company was consolidated with the Indiana, Bloomington & Western Railway and became known as the Ohio, Indiana & Western Railway Company. This last named road, in due course, went into the hands of a receiver, which proceeding terminated in foreclosure. At the foreclosure sale in February, 1890, the lot was purchased by C. H. Coster, et al., and these parties subsequently deeded it to the Cleveland, Cincinnati Chicago & St. Louis Railway Company.
The plaintiffs are the bodily heirs of Emma McGuire who died January 28, 1912, and it is upon their alleged rights as remaindermen, under the terms of the deed of William Dunlap to his daughter Emma McGuire, the mother of plaintiffs that this action is bottomed. The suit was filed in the circuit court of Jackson County, Missouri, April 25, 1914, and is predicated upon the theory that the conveyance of said property to the Indiana, Bloomington & Western Railway Company, by their mother, passed only her life estate therein, and did not affect the rights of plaintiffs as remaindermen.
The petition charges that on some day prior to January 28, 1912, defendants wrongfully took possession of said lot by physically occupying it with their tracks and right-of-way, and thereby wrongfully appropriated same to their own use, and that plaintiffs are thereby prevented from recovering possession of it; and that the reasonable value thereof at the time of its appropriation by defendants was $ 300. Certain constitutional and statutory provisions of the State of Ohio are also pleaded, the purport of which is that no right of way shall be appropriated until full compensation therefor shall first be made in money to the owner; and that where there is an unlawful appropriation, the owner may resort to any remedy that is appropriate, among others, an action for compensation.
The answer denies that plaintiffs have any title to the lot described in the petition and avers that, on the contrary, the defendant Cleveland, Cincinnati, Chicago & St. Louis Railway Company is the owner thereof in fee simple. The answer further asserts that the court is without jurisdiction of the subject-matter of the action because the title to real estate is involved. The answer also pleads in bar the Statute of Limitations of the State of Missouri, and alleges that defendant, Cleveland, Cincinnati, Chicago & St. Louis Railway Company has continuously been in open, notorious, adverse and exclusive possession as owner of said lot, and has continuously used the same for railroad purposes since the 16th day of July, 1881.
The reply was a general denial. After plaintiffs had concluded their evidence in chief, the court, at the request of defendants, marked "given" a peremptory instruction in the nature of a demurrer to the evidence. Thereupon plaintiffs took an involuntary nonsuit, with leave. The trial court refusing to set aside the nonsuit, plaintiffs were allowed an appeal to the Supreme Court. For want of jurisdiction the Supreme Court transferred the cause to this court.
The answer of defendants puts in issue the question of the Statute of Limitations. It must be conceded that the right to the possession of property is the basis of this controversy, and the complaint is therefore founded not upon contract, but privity of estate.
Plaintiffs charge in their petition that they "do not seek to recover possession of the property . . . but desire to recover the actual monetary value thereof. . . ." This necessarily involves the question of whether the action is local or transitory. This is a jurisdictional question and it cannot be successfully contended that a plaintiff may establish jurisdiction by a simple allegation in his petition. This is a question for the court's determination, under the facts pleaded.
It was held in White v. Sanborn, 6 N.H. 220, that an action founded upon privity of estate in land is local and must be brought in the place where the land lies. This is the general rule accepted by the courts in the various States. [Lienow v. Ellis, 6 Mass. 332; Clark v. Scudder, 72 Mass. 122.] Plaintiffs are claiming, under their alleged rights as remaindermen, upon the termination of the life estate of their mother, whose death is alleged to have occurred in 1912. Upon the termination of the life estate, the remainderman has his right of entry. [Beckham v. Maples, 95 Ga. 775; Wells v. Prince, 4 Mass. 63; Covar v. Cantelow, 25 S.C. 41.] Holding, as we do, under these authorities, that the action herein is local and not transitory, we pass to the consideration of the questions as to whether or not plaintiffs are barred by the Statute of Limitations of the State of Ohio. In Webster v. Pittsburg, etc., R. Co., 78 Ohio St. 87, 84 N.E. 592, 594, it is said:
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