Green v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1884
• Citation: 82 Mo. 653
• Parties: GREEN et al., Executors, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 653

GREEN et al., Executors,

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

E. A. Andrews and Robert Adams for appellant.

(1) On this record Zeitinger & Zoppi could not maintain ejectment or trespass; then how can a purchaser under a deed of trust do so for the breach of a contract made by the grantors in said deed of trust subsequent to such deed of trust, but long prior to a forfeiture thereof? Baker v. Railroad Co., 57 Mo. 265; Provolt v. Railroad Co., 57 Mo. 256, and 69 Mo. 633; Hubbard v. Railroad Co., 63 Mo. 68; Evans v. Railroad Co., 64 Mo. 453; Kanaga v. Railroad Co., 76 Mo. 205. (2) Plaintiff must be presumed to have dealt with the land in controversy with full knowledge of the rights which the railroad had acquired, the act incorporating it being a public act. Acts 1849, p. 219; Davis v. Rail road Co., 3 Am. and Eng. R'y Cases, 543. (3) The railroad company by constructing its road over the land in question acquired such right of entry and possession as to bind subsequent purchasers, and hence plaintiff cannot maintain ejectment. Davis v. Railroad Co., 1 Sneed 94; Verder v. Railroad Co., 15 Shands (S. C.) 476; Sams v. Railroad Co., 15 Shands (S. C.) 484; Trenton, etc., v. Chambers, 9 N. J. Eq. 471; Railroad Co. v. Baldwin, 103 U. S. 474. (4) The action of the court in sustaining the exceptions of Zeitinger & Zoppi to the report of the commissioners had no effect whatever upon the right of possession by the railroad. Acts 1849, p. 219, § 10; 101 Ill. 402. (5) The lease read in evidence conveys no interest in the land to plaintiff, for the reasons, 1st, At the time of the execution of the lease the railroad company had, by appropriate proceedings, obtained the right to construct, and had constructed, its road over the land, and D. R. Garrison, its president, had no power to limit, restrict, modify or destroy that right. 2nd, If there was any right under the lease to maintain an action of ejectment or for damages, it remains in Zeitinger & Zoppi, and did not pass under the deed of trust. Davis v. Railroad Co., 3 Am. and Eng. Railway Cases 543; Brown v. Co. Com. of Essex, 12 Metc. 481; Tenbrook v. Jahke,77 Pa. St. 392; Toledo, etc., v. Hunter, 50 Ill. 325; Pomeroy v. Railroad Co., 25 Wis. 64; Haskell v. New Bedford, 103 Mass. 208; McLendon v. Railway Co., 54 Ga. 293.

R. E. Rombauer for respondents.

PHILIPS, C.

This is an action of ejectment instituted in the circuit court of St. Louis for the recovery of a small strip of ground, thirty feet in width across the north half of lot A in Eiler's survey of Carondelet.

This lot belonged to Zeitinger & Zoppi who were partners. In 1872 the Pacific Railroad Company, desiring to run a branch road to or through this ground in order to reach a manufacturing establishment in Carondelet, instituted proceedings to condemn this strip to its use. Commissioners were accordingly appointed to assess the damages who duly made their report to the proper authority. The company paid the amount of this assessment to the clerk of the circuit court and entered upon the work of constructing this branch or spur over the lot in question. Zeitinger & Zoppi filed their exceptions in due time to this report and on the 17th day of December, 1873, the court sustained the exceptions and set aside the report. The railroad company thereafter withdrew the money so deposited. On the 27th day of April, 1874, the parties came to an adjustment and settlement of the whole matter, which was expressed in a written compact, then entered into between them, duly acknowledged and put to record in said county, by the terms of which the company paid to Zeitinger & Zoppi the sum of $1,025 in full satisfaction of all claims for compensation, or damages which they or either of them had, or might have, against the said company, by reason of the trespass and entry upon said land, and the construction of said road thereon; and in consideration of the premises said Zeitinger & Zoppi leased and demised said strip of land to the company for its use, etc., from that date until March, 1875, and until the expiration of notice of ninety days to quit. It is further stipulated that at the expiration of the said lease, the company should be permitted to remove said railroad from said strip, and said Zeitinger & Zoppi were to let the company, at its option, have, for the term of ten years from the expiration of said first lease, another strip of ground near this in controversy for the use of its railroad upon the terms therein specified.

It is conceded that Zeitinger & Zoppi gave the company the stipulated notice to quit and the proof showed that this notice had been repeated. In May, 1873, Zeitinger & Zoppi executed a deed of trust upon said land, in favor of one Gay, to secure the payment of money borrowed by them from said Gay. This deed of trust was foreclosed and the property sold thereunder on the 28th day of February, 1877, to one Casey, who received the proper deed therefor. On the same day Casey conveyed by deed said lot to one Withnell who since died, leaving a will by which the legal title to said property was vested in the plaintiffs, as trustees or executors. There were other facts in evidence on the trial but they are not material to the proper consideration of the questions involved in this controversy. There were no exceptions saved on this trial. The court found the issues for the plaintiffs and rendered judgment accordingly. Defendant appealed to the court of appeals where the judgment of the circuit court was affirmed pro forma, and the defendant prosecutes this appeal.

I. It is insisted by the appellant that the plaintiffs acquired no greater title than Zeitinger & Zoppi had, who could not have maintained the action of ejectment against the railroad company because the company originally entered into the possession of the land as a railroad corporation, under the provisions of its charter under condemnation proceedings. We do not feel called upon in the determination of this case to decide whether or not the action of ejectment would lie in the absence of the written agreement of April, 1874. It is enough to say, that notwithstanding the action taken by the railroad company for the condemnation of this land the title in fee to the land remained in Zeitinger & Zoppi. Until the assessed damages are paid by the company to the land owner the title continues in him. Walther v. Warner, 25 Mo. 277; Provolt v. C., R. I. & P. Railroad Co., 57 Mo. 261. The payment into court of the assessment made by the first commissioners did not have the effect to divest the title. The statute, as...