Gratz v. Highland Scenic Railroad Company

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

65 S.W. 223

165 Mo. 211

GRATZ et al., Appellants, v. HIGHLAND SCENIC RAILROAD COMPANY

Supreme Court of Missouri, First Division

November 19, 1901

Appeal from the St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Affirmed.

James A. Seddon, James L. Blair and Seddon & Blair for appellants.

The court erred in sustaining the demurrer to the evidence at the close of the plaintiff's case, as it clearly appeared that the conveyance of the right of way was made upon the valid conditions subsequent; that these conditions had not been complied with by the defendant, thereby rendering their estate void and of no effect, and giving a right of re-entry in the plaintiffs, which under our statutes and decisions is sufficiently expressed by instituting the action of ejectment. Hubbard v. Railroad, 63 Mo. 70; Avery v. Railroad, 113 Mo. 561; Harner v. Railroad, 38 Wis. 165; Martin v. Railroad, 37 W.Va. 349; Ritchie v. Railroad, 55 Kan. 36; Nicoll v Railroad, 12 N.Y. 121. The question whether a clause or stipulation in a contract is a condition or covenant, is one of intent to be gathered from the whole instrument and the existing facts. Studdard v. Wells, 120 Mo. 29; St. Louis v. Wiggins Ferry Co., 88 Mo. 618; 4 Kent's Com., 132. In a voluntary conveyance, words may be held to be a condition, which, if used in a conveyance made for a valuable consideration, would be held a covenant only. Harner v. Railroad, 38 Wis. 165. Although there are technical words, which, if used in a conveyance, unmistakably create a condition, yet the use thereof is not absolutely essential to that end, and a valid condition may be expressed without employing these words. Tiedeman on Real Prop., sec 272; 2 Wash. Real Prop. (5 Ed.), sec. 3; Hubbard v Railroad, 63 Mo. 70; Stillwell v. Railroad, 39 Mo.App. 231; Ritchie v. Railroad, 55 Kan. 36. A clause of re-entry is not necessary to make a condition subsequent. Tiedeman on Real Prop., sec. 277; Ruddick v. Railroad, 116 Mo. 31; Gray v. Blanchard, 8 Pick. (Mass.) 291; Harner v. Railroad, 38 Wis. 165. The action of ejectment will lie against a railroad company for the recovery of a right of way on the breach of a condition subsequent although the conveyance contains no express clause of forfeiture. Ruddick v. Railroad, 116 Mo. 33; Harner v. Railroad, 38 Wis. 165; Nicoll v. Railroad, 12 N.Y. 121. It is not necessary in order to take advantage of a condition that its breach should have caused injury to the grantor. 2 Wash. Real Prop., p. 19; Tiedeman Real Prop., sec. 277.

A. N. Edwards, Dawson & Garvin and Leonard Wilcox for respondent.

(1) Even though the terms of the deed, which are alleged to have been broken, are conditions, ejectment will not lie. Baker v. Railroad, 57 Mo. 265; Provolt v. Railroad, 57 Mo. 263; McClellant v. Railroad, 103 Mo. 313; Hubbard v. Railroad, 63 Mo. 68; Dodd v. Railroad, 108 Mo. 585; Scarritt v. Railroad, 127 Mo. 303; s. c., 148 Mo. 681; Osborne v. Railroad, 37 F. 830. (2) The terms of the deed, which are alleged to have been violated, are not conditions. 4 Kent. Com. (14 Ed.), pp. 130, 132; University v. Swarth, 107 F. 803; McKnight v. Kreutz, 51 Pa. St. 238; Studdard v. Wells, 120 Mo. 29; Roanoke Inv. Co. v. Railroad, 108 Mo. 63.

OPINION

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 the 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, 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, 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 crossing 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 impracticable for a crossing, and plaintiffs were compelled to make another road to town from their property. The railroad was constructed within the time specified in the deed, and is in continuous operation. This strip is midway between the main termini of the road and that part of the railroad on this strip is necessary to the operation of the road. At the close of the plaintiffs' case, defendant interposed a demurrer to the evidence. The court took the case under advisement, and subsequently rendered a finding for defendant on the issues joined, and a judgment accordingly. Plaintiffs appeal.

The trial court, in a memorandum of its findings and opinion said that the railroad company had failed "to construct cattle guards, and also failed to construct and plank over certain crossings and for these failures and omissions the plaintiffs claim a forfeiture and the right of possession of said right of way. Plaintiffs' counsel present quite an able and learned argument to maintain their position, but the fact remains that the contract does not provide for a forfeiture on account of these omissions, and no forfeiture can be construed unless so provided in the contract, and no action of ejectment will lie in this State for a breach...