Gratz v. Highland Scenic R. Co.

• Decision Date: 19 November 1901
• Citation: 65 S.W. 223,165 Mo. 211
• Parties: GRATZ et al. v. HIGHLAND SCENIC R. CO.
• Court: Missouri Supreme Court

65 S.W. 223

165 Mo. 211

GRATZ et al. v. HIGHLAND SCENIC R. CO.

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

RIGHT OF WAY — CONSTRUCTION OF DEED — CONDITIONS SUBSEQUENT — FORFEITURE.

A deed conveyed to a railroad company, "subject, however, to the faithful performance of this agreement," the right to construct a railroad through certain land. It stipulated, among other things, that natural drains were to be preserved, and that planked crossings were to be constructed, the conveyance being "upon condition, however, that the grantee" shall construct and maintain an electric railway, "and upon the failure or abandonment of said enterprise * * * that the privilege herein and the property hereby conveyed shall revert to and be fully vested in the grantors." Held, that a failure by the railroad company to construct the plank crossings, or to do any of the other collateral acts required by the first portion of the contract, did not work a forfeiture of the right of way, the only forfeiture being conditioned on a failure to construct or maintain the electric railway.

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

Ejectment by Laura C. Gratz and others against the Highland Scenic Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

James A. Seddon and James L. Blair, for appellants. A. N. Edwards, Dawson & Garvin, and Leonard Wilcox, for respondent.

VALLIANT, J.

This is an action in ejectment to recover a strip of land through which is a railroad, which at the commencement of this suit was in the possession of and operated by defendant. The land is embraced in a right of way granted by the plaintiffs to the St. Louis & Kirkwood Railroad Company, upon which that company constructed its railroad, and which at the commencement of this suit was in the possession and use of the defendant as lessee under plaintiffs' grantee, but pending the suit the lease has expired, and the Kirkwood Company has resumed its possession and is operating the road. The right of way granted was through land of plaintiffs in or near Kirkwood, and the plaintiffs ground their right of recovery on the proposition that the grant was on conditions subsequent, which have been broken by the grantee, and for the breaches plaintiffs have in due form declared the forfeiture and demanded possession. The case turns chiefly on the construction that should be placed on the deed granting the right of way. That deed is as follows: "Contract for right of way, entered into between Laura B. Gratz and Anderson Gratz, her husband, of the town of Kirkwood, St. Louis county, Missouri, parties of the first part, and the Kirkwood & St. Louis Railroad Company, a corporation of the state of Missouri, party of the second part, witnesseth: For and in consideration of one dollar in hand paid, the receipt of which is hereby acknowledged, the parties of the first part hereby sell and transfer to the party of the second part, its assigns and successors, subject, however, to the faithful performance of the terms of this agreement, the right to build, maintain, and operate a railway over and through a certain tract of land [description], said right of way to be so used as not to interfere with the remaining rights of the first parties to use the property, whether as a street or for other purposes. No trees are to be cut on said right of way unless said trees interfere with the construction or operation of said road. Natural drains to be preserved by ample culverts, bridges, or trestles, except that in the westerly half of said property the party of the second part may direct the creek into ditches not to be confined to the right of way. All surplus earth, if any, to be deposited at any point designated by first party within three hundred feet of a place of excavation. Proper cattle guards to be constructed by second party at each entrance to property. Proper level and planked crossings to be constructed by second party at two points to be designated by first party. No construction camps or other nuisance to be allowed on the right of way, and no crossing or trespassing to be allowed on any other part of the property. Entire right of way to be maintained by second party in a clean and decent condition, free from all nuisances. The party of the second part agrees that in case a street or streets should be dedicated including the right of way, that they will operate and maintain this section of their railroad in the way provided, and subject to all the conditions of the ordinance of the town of Kirkwood granting them the right of way through the streets of said town, upon condition, however, that the grantee herein, its successors and assigns, shall construct and maintain a single or double track of railroad, to be operated by electricity for motive power, or by such other approved power as may be adopted by the grantee or assigns; and upon the failure or abandonment of said enterprise by the grantee herein or its successors or assigns, that the privilege herein and the property hereby conveyed shall revert to and be fully vested in the grantors, their legal representatives or assigns; and conditioned also that the construction of such road be fully completed and such road be in operation in or before the year 1896." The cause was tried by the court, jury waived. There was evidence on the part of the plaintiffs tending to show that the railroad as constructed impaired the use of the strip as a street; that no cattle guard was constructed; that, although the plaintiffs' designated two crossings, yet the railroad company made only one, and that one not planked or made level; that the rails were laid on ties above the surface, as in ordinary steam railroads; that at the crossings which the railroad company did construct the roadbed was graded so that it was necessary in passing over it to go up and down a considerable embankment; that at the other place designated by plaintiffs for a crossing not only was no crossing made, but a switch with high guard rails was put in, which rendered it...