Gray v.St. Louis & San Francisco Ry. Co.

• Decision Date: 31 October 1883
• Parties: GRAY v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

81 Mo. 126

GRAY

v.THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jasper Circuit Court.--HON. M. G. MCGREGOR, Judge.

REVERSED.

John O'Day for appellant.

The fee to the streets in the city of Joplin, is in the town. Respondent cannot maintain ejectment against defendant for that portion of the streets occupied by its road; yet the lower court has rendered judgment and ousted the defendant from the streets and alleys. Gen. St. 1865, p. 248, § 8; R. S. 1879, § 6573; Adams v. Railroad Co., 11 Barb. 414; City of Cincinnati v. White, 6 Peters 431; Canal Trustees v. Havens, 11 Ill. 554; Hunter v. Middleton, 13 Ill. 54; Leach v. Waugh, 24 Ill. 228; Drake v. Railroad Co., 7 Barb. 508; Hoboken, etc., Co. v. Mayor, 36 N. J. Law 540; Dummer v. Selectmen of Jersey City, 20 N. J. Law 109; Porter v. Railroad Co., 33 Mo. 137; Des Moines v. Hall, 24 Ia. 234; Reid v. Board of Education, 73 Mo. 295. The description of the land in the petition is bad, as it was not described by lots and blocks, being in the city of Joplin. Henry v. Mitchell, 32 Mo. 512, 519; Evans v. Ashley, 8 Mo. 178; Hannibal v. Draper, 15 Mo. 634; Ragan v. McCoy, 29 Mo. 359. A railroad duly incorporated under the laws of an adjoining state, can construct a road in and through this State, and may exercise all the powers and privileges conferred by the general laws of this State upon a railroad incorporated here. R. S. 1879, § 790; Laws 1870, p. 90, § 2. A de facto railroad company may exercise the right of eminent domain, and its power to do so cannot be questioned in a collateral proceeding of this character. It can only be done by a direct proceeding by the State for that purpose. Reisner v. Strong, 24 Kas. 410; Brookville, etc., v. McCarty, 8 Ind. 392; Dequindore v. Williams, 31 Ind. 444; Evansville R. R. Co. v. Evansville, 15 Ind. 395; McAuley v. Railroad Co., 83 Ill. 348. The State must proceed by direct judicial proceeding to forfeit a charter. Trustees, etc., v. Beers, 2 Black 448; State v. Adams, 44 Mo. 570; 35 Mo. 190; 22 Wend. 653; Parker's Appeal,64 Pa. St. 137; Supervisors v. Garrell, 20 Gratt. 484; Cotton v. Boom Co., 22 Minn. 372. The question of forfeiture cannot be raised in a proceeding to condemn. Oregon, etc., R. R. Co. v. Bailey, 3 Ore. 164; West v. Ins. Co., 31 Ark. 476; 23 Wend. 254; 5 Duer 677; 1 Abb. (U. S.) 9; Bruffet v. Railroad Co., 25 Ill. 310; State ex rel. Pittman v. Adams, 44 Mo. 570; Cleveland, etc., R. R. Co. v. Beers,65 Pa. St. 225. The railroad company might elect, within ten days after the return of the assessment, to abandon the proceedings, but it could not after that time. R. S. 1865, p. 352, § 3; R. S. 1879, § 894; St. Louis, etc., R. R. Co. v. Karnes, 101 Ill. 402. The railroad company having rightfully entered, cannot be ejected even if it afterward forfeited its right, without first being notified to quit. C., B. & Q. R. R. Co. v. Knox College, 34 Ill. 195; Jackson v. Wheeler, 6 John. 272; Kas. Pac. R'y Co. v. Mihlman, 17 Kas. 224. The plaintiff did not, by any legal means or otherwise, resist the right of the Kansas City, Joplin & Little Rock Railroad Company to construct its road on its lands. He permitted the defendant's lessors to transfer the possession of the road to defendant company, and suffered defendant to take quiet and peaceful possession, and operate the road for more than two years afterward without objection, and he thereby waived his right to maintain an action of ejectment. Provolt v. Railroad Co., 57 Mo. 256; Hubbard v. Railroad Co., 63 Mo. 68; Kanaga v. Railroad Co., 76 Mo. 207. The order dismissing the condemnation proceedings is void, and the case is yet pending and undisposed of. Proceedings to condemn right of way for a railroad, are purely statutory. The statute is the only guide of the judge or court. The power granted to the court in condemnation proceedings, confers special and limited jurisdiction, and the record of the proceedings must show all the facts which give jurisdiction to make the order, otherwise the judgment will be void. R. S. 1865, pp. 252, 253, §§ 2, 3, 4; State v. Woodson, 41 Mo. 227; Stebed v. Stock, 31 Mo. 456; McCoy v. Zane, 65 Mo. 11; Railroad Co. v. Campbell, 62 Mo. 585; Wood v. Boots, 60 Mo. 546; Ells v. Railroad Co., 51 Mo. 200; People v. Brooklyn, 1 Wend. 318; Crowner v. Railroad Co., 9 How. Pr. 457; Neal v. Railroad Co.,31 Pa. St. 19; Pollard v. Moore, 51 N. H. 188; Jones v. Oxford Co., 45 Me. 419; Lafayette v. Shultz, 44 Ind. 97; Hupert v. Anderson, 35 Ia. 578; Strafford v. Mayor, etc., 1 John. 541; In re the Mayor, etc., 20 John. 269.

M. L. Gray pro se.

Action of ejectment was the proper remedy on the facts of this case. Anderson v. St. Louis, 47 Mo. 485; Walker v. Railroad Co., 57 Mo. 275; Armstrong v. St. Louis, 69 Mo. 309; Ellis v. Railroad Co., 51 Mo. 200; Carpenter v. Railroad Co., 24 N. Y. 655; Wager v. Railroad Co., 25 N. Y. 526; Lozier v. Railroad Co., 42 Barb. 465. No acquiescence or act of respondent is shown, that brings this case within the principle of Provolt v. Railroad Co., 57 Mo. 256; Baker v. Railroad Co., 57 Mo. 265, or Kanaga v. Railroad Co., 76 Mo. 207. The description of the land sued for is sufficient. Adams on Eject., side p. 23, et seq.; Tyler on Eject., 393 to 396. The condemnation proceedings were properly excluded. 1 R. S. 1879, § 892; Gen. St. 1865, p. 351, § 11; 2 Dillon on Munic. Corp., § 482; Lamb v. Lane, 4 Ohio St. 167; Wells v. Co. Road, 7 Ohio St. 16; Stewart v. Baltimore, 7 Md. 351; State v. Grave, 19 Md. 351. There was no error in instructions given for respondent. No error in refusing appellant's instructions refused. Adams on Eject., side p. 391; Goodtitle v. Toombs, 3 Wils. 118, 121; Jones v. Manly, 58 Mo. 559, 563; 1 R. S. 1879, § 3557; Newton v. Miller, 49 Mo. 298; Bolinger v. Carter, decided at Oct. term 1883, not reported, and other cases cited in argument; Thurston v. St. Joseph, 40 Mo. 512; Hannibal Bridge Co. v. Schaubacker, 57 Mo. 582; Adams on Eject., side p. 21, and note 1; Cooper v. Smith, 9 Serg. & Rawle, 26; Jackson v. Hathaway, 15 J. R. 447, 453 side p.; Whitebeck v. Cook, 15 J. R. 491; Peck v. Smith, 1 Conn. 129; Stackpole v. Healy, 16 Mass. 33; Bolling v. Mayor, 3 Rand. 572; Lozier v. N. Y. Cent. R. R. Co., 42 Barb. 465; Wager v. Troy Union R. R. Co., 25 N. Y. 526; Carpenter v. Oswego R. R. Co., 24 N. Y. 655; Mahon v. N. Y. Cent. R. R. Co., 24 N. Y. 658. As to remittitur--Johnson v. Robertson, 1 Mo. 615; McAllister v. Mullanphy, 3 Mo. 38; Johnston v. Morrow, 60 Mo. 339; Phillips v. Evans, 64 Mo. 22; Miller v. Hardin, 64 Mo. 545, 547; Clark v. Bullock, 65 Mo. 535; Higgs v. Hunt, 75 Mo. 106, 107; Sharp v. Johnston, 76 Mo. 660, 674. Motion in arrest properly overruled. 1 R. S. 1879, § 3707.

EWING, C.

This was an action in ejectment, commenced in August, 1880, to recover of defendant a part of the east half of the southwest quarter of section 3, township 27, range 33. The petition is in the ordinary form and the answer a general denial.

Plaintiff read in evidence against defendant's objections, a patent from the United States, and then evidence tending to show the damage sustained, and that defendant was in possession; and one witness testified, that he, as the agent of the plaintiff, appeared before the commissioners who were appointed to appraise the damages for the right of way, and read decisions of the Supreme Court as to the measure of damages, and argued before the board, that the damages awarded were not sufficient; and, that he objected to the road going on. Defendant then offered evidence as to the amount of damage sustained, and then offered the record of the proceedings for the appointment of commissioners, and condemnation of the right of way in the case of the Kansas City, Joplin & Little Rock Railway, against M. L. Gray and others, which latter company built the road, and which was afterward sold to the defendant. The record was objected to by the plaintiff, and the objections sustained and the record excluded. This record showed that a petition was filed, Gray notified, commissioners appointed, who assessed the damages at $245, which were paid over to the clerk of the circuit court. Respondent filed his answer to the petition for condemnation, withdrew it and filed a demurrer, also filed his objections to the report of the commissioners, upon the ground that the damages were insufficient. It also showed, that the demurrer was sustained, and petition amended in some particular; and in March, 1880, long afterwards, the court, on motion of the Kansas City, Joplin & Little Rock Railway, dismissed as to Gray. The defendant asked, and the court refused the following instruction:

2. The court instructs the jury, that if they believe from the evidence, that plaintiff's land occupied by the defendant, is a part of a long line of railroad, operated by the defendant from Girard, in Kansas, via Joplin, Mo., to St. Louis, and that said portion of said railroad was constructed over plaintiff's land with the knowledge of plaintiff or his agents at the time, and that plaintiff did not object to the construction of said railroad, but only as to amount of or measure of damages to be paid him for the right of way, and that this suit was not brought, or any objection made by plaintiff to the construction of said road, until long after the same was completed and in operation, then the plaintiff is estopped from recovering in this case, and they will find the issues for the defendant.

I. This condemnation proceeding was commenced under sections 1, 2 and 3, General Statutes, 1865, p. 352, which provided, that railroad corporations might file their petition before the circuit court or judge in vacation, setting out the requisite things, and the judge should appoint commissioners who should proceed to assess damages and report, and, that the clerk should record the report; that “thereupon such company shall pay to the said clerk, the amount thus...