Eureka Real Estate & Inv. Co. v. Southern Real Estate & Financial Co.

• Decision Date: 10 March 1947
• Docket Number: 40045
• Citation: 200 S.W.2d 328,355 Mo. 1199
• Parties: Eureka Real Estate & Investment Company, a Corporation, (Plaintiff) Appellant, v. Southern Real Estate & Financial Company, a Corporation, et al., (Defendants) Appellants, Union Electric Company of Missouri, a Corporation, et al., (Defendants) Respondents
• Court: Missouri Supreme Court

200 S.W.2d 328

355 Mo. 1199

Eureka Real Estate & Investment Company, a Corporation, (Plaintiff) Appellant, v. Southern Real Estate & Financial Company, a Corporation, et al., (Defendants) Appellants, Union Electric Company of Missouri, a Corporation, et al., (Defendants) Respondents

No. 40045

Supreme Court of Missouri

March 10, 1947

Appeal from Circuit Court of St. Louis County; Hon. Raymond E LaDriere, Judge.

Affirmed in part and reversed and remanded in part.

Calhoun & Boisseau for appellant Eureka Real Estate & Investment Company.

(1) A railroad is a public highway, and the interest acquired by a railroad in lands condemned for a right of way is that of an easement only. Constitution of Missouri, Art. XI, Sec. 9; St. Louis Railway Co. v. Cape Girardeau Tel. Co., 114 S.W. 586; State ex rel. v. Griffith, 114 S.W.2d 976. (2) When an owner conveys land abutting on a public highway in which he owns the servient estate, his deed carried with it such servient estate unless his intention not to do so is clearly expressed in the deed. Snoddy v Bolen, 122 Mo. 479, 25 S.W. 932; McDonald v. Frisco Railway Co., 185 S.W. 214; Betz v. Telephone Co., 121 Mo.App. 473; Baker v. St. Louis, 7 Mo.App. 429, affirmed 75 Mo. 671. (3) The same rule applies to lands abutting on a railroad right of way. Brown v Weare, 348 Mo. 135, 152 S.W.2d 649; American Steel and Wire Co. v. St. Louis, 190 S.W.2d 919; Paine v. Consumers Forwarding Co., 71 F. 626; Roxana Petroleum Co. v. Sutter, 28 F.2d 159; Rice v. Coal Co., 186 Pa. 49; Center Bridge Co. v. Wheeler & Howes Co., 86 A. 11; Wright v. Willoughby, 60 S.E. 971; Fister v. Foster, 62 S.E. 321; Boney v. Cornwell, 109 S.E. 271; Richardson v. Palmer, 30 N.H. 212; Church v. Stiles, 10 A. 674; Maynard v. Weeks, 41 Vt. 617; Rio Bravo Oil Co. v. Weed, 50 S.W.2d 1080. (4) Union Electric Company has no interest whatever in the right of way in question and no right to occupy it. Title by prescription or adverse possession cannot be obtained thereto. Sec. 1011, R.S. 1939; St. Louis & S.F. Ry. Co. v. King, 50 S.W.2d 94; City of Laddonia v. Day, 178 S.W. 741; Frisco Ry. Co. v. Dillard, 43 S.W.2d 1034; St. Joe Ry. Co. v. Smith, 70 S.W. 700, 170 Mo. 327; Hannibal & St Joe Ry. Co. v. Tatman, 51 S.W. 412; Bowzer v. State Highway Comm. 170 S.W.2d 399. (5) A permissive use cannot ripen into an easement however long continued. State ex rel. v. Union Electric Co., 148 S.W.2d 503. (6) When the use of this right of way for street railway service became no longer possible and such service thereover was abandoned by the St. Louis Public Service Co., all its rights therein ceased. See authorities cited by other appellants herein. (7) Costs should not be assessed against the plaintiff. Sec. 1406, R.S. 1939.

Boyle, Priest & Elliott, and G. T. Priest for appellants Southern Real Estate & Financial Company, Delmar Investment Company, Harriet Cella, John G. Cella, Harriet Donnell and Mae Cella, Trustees under Will of Charles J. Cella, Deceased.

(1) The intention of grantor or grantors in a deed alone controls and must be given full consideration. His or their interests are paramount, as determined by the deed. Triplett v. Triplett, 332 Mo. 870. (2) This court may not alter or amend a deed where the intention of the grantor is shown therein by express, clear and certain language. Krug v. Bremmer, 316 Mo. 891. (3) Where one owns lands on both sides of a railroad or street railway right of way and deeds a portion of the land lying wholly on one side of the right of way and describes the property as being bound by the right of way, he does not thereby convey title to any portion of the right of way. Cox v. Campbell, 80 S.W.2d 1000; Jackson v. Hathaway, 15 Johnson, 447; Brown v. Oregon Short Line, 102 P. 774. (4) Where there has been an abandonment of a right of way and no part of plaintiff's property has been appropriated for said right of way, it has no title to the land thus relieved of the burden, by virtue of the fact that its property lies contiguous thereto. Neil v. Independent Rys. Co., 317 Mo. 1235, 298 S.W. 363; Brown v. Weare, 152 S.W.2d 649. (5) The right of way of a railroad is not a public highway in the sense of a public road or street and the rule of construction does not apply to a deed for land bounded by a public highway, so as to make the deed convey land not included in its terms. Couch v. Texas & Pacific Ry. Co., 90 S.W. 860. (6) Where it becomes physically impossible to operate a right of way secured by condemnation proceedings or by grant, the right of way and all its appurtenances are terminated by operation of law. This regardless of the intent of the owner of the right of way to abandon it. Southern Ry. Co. v. Memphis, 97 F. 819; Central Wharf v. India Wharf, 123 Mass. 567; Winston v. Whitaker, 226 P. 1034; St. L.-S.F. Ry. Co. v. Silver King Oil & Gas Co., 234 Mo.App. 589. (7) The burden is upon plaintiff to prove title to the property claimed and unless he does so his action must fail, regardless of the defendants' title. Plaintiff's Exhibits I and J objected to, should have been excluded. Bostwick v. Freeman, 160 S.W.2d 713.

A. E. L. Gardner for respondents Union Electric Company of Missouri and St. Louis Public Service Company; T. E. Francis of counsel for St. Louis Public Service; John A. Woodbridge of counsel for Union Electric Company of Missouri.

(1) It has been uniformly ruled by our Supreme Court that abandonment of a railroad right of way cannot be declared unless the owner of such right of way has by its intention and acts surrendered all its rights, interests, title and possession to such right of way and so completely vacated said part of its said right of way as to authorize its appropriation by the owner of the servient estate therein. All the cases hold that the facts showing an abandonment must be strong and convincing. St. Louis-S.F. Ry. Co. v. Dillard, 328 Mo. 1154, 43 S.W.2d 1034; Scarritt v. Ry. Co., 148 Mo. 676, 50 S.W. 905; Hatten v. Railroad, 253 Mo. 660, 162 S.W. 227; Gale v. Nolan, 137 S.W.2d 974; Hickman v. Link, 116 Mo. 123, 22 S.W. 472; K.C. & S.E. Ry. Co. v. Ry. Co., 129 Mo. 62, 31 S.W. 451; Tiedeman on Real Property (1st Ed.), sec. 605. (2) To prove abandonment there must be some clear and unmistakable act or series of acts to indicate a purpose to repudiate ownership. Words and Phrases, "Abandonment", pp. 5-7; 66 A.L.R. 1094; McLain v. Ry. Co., 90 Iowa 646; Raleigh Ry. Co. v. McGuire, 88 S.E. 337, 171 Car. 277. (3) Abandonment means to relinquish or give up with intention of never again resuming or claiming one's rights or interests in, to give up absolutely, to forsake entirely, to renounce utterly, to relinquish all connection or concern in (this relates to abandonment of railroad right of way). Capitol Transit Co. v. Hazen, 99 F.2d 250. (4) "Abandonment has been defined as follows: To relinquish or give up with intention of never again resuming or claiming one's rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to quit, forsake. Webster's Dictionary. (5) Appellants have no right to the possession of the property in controversy as against the Union Electric Company of Missouri, a licensee of the St. Louis Public Service Company. Fuhr v. Dean, 26 Mo. 116; Aubuchon v. Foster, 202 Mo.App. 225, 215 S.W. 781; Missouri P. & L. Co. v. Thomas, 340 Mo. 1022, 102 S.W.2d 564; Joplin Supply Co. v. West, 149 Mo.App. 78, 130 S.W. 156. (6) A license in respect to real property operates merely as a privilege to go on the premises of another for certain purposes and is a protection to the licensee for all acts done by it within the scope of its license, and may confer an exclusive right if it clearly appears that it was the mutual design of the parties to make it exclusive. 37 C.J., pp. 284-286.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

The Eureka Real Estate and Investment Company instituted this action to try and quiet title to a strip of land which in 1900 had been condemned as right of way for a street railway. The strip of land consists of contiguous tracts, one twenty-five feet wide and 200 feet long, the other fifty feet wide and ninety feet long. The theory of the action is that the street railway company's succssor in title, the St. Louis Public Service Company, abandoned the right of way and therefore the title is subject to being quieted and determined. The trial court found that the land had not been abandoned and was yet a necessary part of the maintenance and operation of the St. Louis Public Service Company's street railway system as a whole. The court found that the defendant Union Electric Company's poles and lines were upon the right of way by permission of and for so long a time as the St. Louis Public Service Company continued to use its right of way for street railway purposes. The court also found that the plaintiff, Eureka Real Estate and Investment Company, owns the fee simple title to the land subject to the street railway company's easement. Upon this appeal the plaintiff, Eureka Real Estate and Investment Company, and the defendants, Southern Real Estate and Financial Company, Delmar Investment Company and the Cellas, contend, as against the St. Louis Public Service Company, that the right of way had been abandoned. The secondary question, in which the respondents are not interested, is whether the court correctly determined the incidence of the fee simple title as between the appellants.

In 1900, upon the petition of the Brentwood, Clayton and St Louis Railroad, this strip of land through Victor M. Buck's property was condemned and appropriated as a right of way for a street railroad. The petition in condemnation described the course and purpose of...