1. In 1859 T. owned the land in controversy, and operated a ferry across an adjoining river, and conveyed the land to plaintiff's grantor exclusively for railway purposes, and on condition that neither the grantees nor their successors should establish a ferry at that point. In 1868 plaintiff built a bridge across the river three-quarters of a mile above the ferry, and erected a new depot at that point, and tore up its main track over the land in controversy, but left a side track on which to store old cars, and ceased to use the ferry; and T. took immediate possession and leased the land to a lumber company, to which plaintiff sold its warehouses and old depot. The lumber company occupied the land as T.'s tenant until 1878, when T. leased it to a tile-manufacturing company, and plaintiff required the company to haul its products to the new depot for shipment. Since 1868 the property has remained in the possession of T. or his grantees. Held, that the grant was conditional, and conveyed an easement over the land only so long as plaintiff continued to operate a railroad on it and to deliver its freight and passengers at the ferry.
2. The evidence was sufficient to show that plaintiff abandoned the property.
3. On T.'s retaking possession of the property the title reverted to him, without his bringing an action of forfeiture.
4. Plaintiff was estopped by its conduct from asserting that the deed was not conditional, or that it had not abandoned the property, and hence a judgment for defendant in ejectment will not be disturbed.
Appeal from circuit court, Marion county; Reuben F. Roy, Judge.
Ejectment by the Hannibal & St. Joseph Railroad Company against John A. Frowein. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
This is an action of ejectment for two tracts of land, each located within and constituting a part of a certain tract containing 24.76 acres, lying partly in fractional section 2 and partly in fractional section 3, township 59, range 5 W., in Marion county, Mo.; a strip of ground 500 feet in width along the west bank of the Mississippi river, and extending westwardly a distance of 2,209 feet. Petition is in the usual statutory form. The answer, while lengthy, is necessary to a proper understanding of the respective claims of the parties, and is as follows: "Defendant, for answer to the petition of plaintiff filed herein, admits that plaintiff is a corporation, and also admits that defendant is in the possession of the two pieces of ground described in said petition, but denies each and every other allegation contained in said petition. Defendant, further answering, states that on the 15th day of April, A. D. 1859, and for three or more years prior thereto, there was and had been existing a railroad company, duly incorporated and organized under the laws of the state of Missouri, by the name of the Quincy & Palmyra Railroad Company, and that at and during said times John Taylor was the owner in fee of all the land described in plaintiff's petition, and also the owner of a ferry franchise, and was engaged in running ferryboats for the transportation of passengers and freight for hire from the city of Quincy, in the state of Illinois, across the Mississippi river, to the town of West Quincy, in the state of Missouri, where he had a ferry dock and other appliances and facilities on said land for landing ferryboats and discharging passengers and freight thereon. Defendant further states that on the said 15th day of April, 1859, said John Taylor remised and released to the said Quincy & Palmyra Railroad Company an easement or right of way over and through the said entire tract of 24.76 acres of ground described in the petition of the plaintiff, from the westerly part of said tract to the said ferry landing on the bank of the Mississippi river, said right of way to be used only and strictly for railroad purposes; and defendant avers that said grant was made by the said John Taylor and accepted by the said Quincy & Palmyra Railroad Company in consideration for and in pursuance of a contract made by and between them, by which the said Quincy & Palmyra Railroad Company contracted and agreed to locate, construct, and operate a railroad over and across the said tract of land to the said ferry landing, and would operate, use, and run said railroad in connection with said ferryboats so owned and run by the said John Taylor as aforesaid, and that the said parties to said contract and agreement would each reciprocally receive from and deliver to the other at said ferry landing, and would transport therefrom, on their several lines of transportation, all of the freight and passengers so carried as aforesaid by them thereto. Defendant further states that said Quincy & Palmyra Railroad Company did, in pursuance of said contract and agreement, locate and construct a railroad over and across the tract of 24.76 acres of ground to the said ferry landing, and did operate and run the same in connection with said ferry, from the latter part of the year 1859 to the latter part of the year 1868, in which latter year the plaintiff bought of the said Quincy & Palmyra Railroad Company the latter's said railroad, together with all the franchises, privileges, and property owned in connection therewith, and became obligated for all the duties and bound by all the contracts and agreements made by the said Quincy & Palmyra Railroad Company, and particularly the contract and agreement so as aforesaid made with said John Taylor. Defendant further states that, when plaintiff became the purchaser of said Quincy & Palmyra Railroad as aforesaid, plaintiff was, and long prior thereto had been, a railroad corporation engaged in operating and running its railroad from Hannibal to St. Joseph and Kansas City, and over the said Quincy & Palmyra Railroad to said ferry landing, all in Missouri, by and under whose laws it was duly organized as such corporation, and at said time plaintiff took up and removed from said tract of 24.76 acres of ground all of the ties, rails, tracks, side tracks, switches, cars, locomotives, and every other appliance used in operating and running said Quincy & Palmyra Railroad over said tract of land, and sold its depots, freight houses, and every other structure used by said railroad on the said tract of land, and then abandoned the use and control of said 24.76 acres of land as formerly had and made of same by the said Quincy & Palmyra Railroad Company and plaintiff, and plaintiff located a railroad over and across another and entirely different tract of land, and made a connection of said last railroad with a railroad bridge across the said Mississippi river about one-half mile north of said ferry landing, and one-quarter of a mile north of said tract of 24.76 acres of land, and thereafter there was no connection of any railroad with said ferry, nor was either passengers or freight transported to or received at said ferry landing from any railroad, and plaintiff ever thereafter transported the freight and passengers carried by its said railroad and destined for either side of
the Mississippi river across the same on said railroad bridge. Whereupon whatever right, title, interest, use, or easement was granted as aforesaid by the said John Taylor to the said Quincy & Palmyra Railroad Company reverted to the grantor, and he then and there entered into the actual occupation and possession of the said 24.76-acre tract of land, and he and his grantee have and has been and remained in such possession ever since such entry. Defendant further states that he is the owner in fee of all the land described in plaintiff's petition by a conveyance and intermediate conveyances from John Taylor down to him, and he further states that he and those under whom he claims have been in the actual, adverse, exclusive, continuous, visible, open, notorious, and hostile possession of all of said lands, including the two pieces thereof described in plaintiff's petition, for more than 10 years next before the institution of this suit; and defendant avers that he and those under whom he claims said land have been in such possession for more than 25 years next before the commencement of this suit. Wherefore defendant says that plaintiff ought not to recover the possession of said lands, or any part thereof, and, having fully answered, he asks to be allowed to go hence, with judgment for his costs herein." To which answer plaintiff filed the following reply: "Now comes the above-named plaintiff, and for reply to the new matter set up in the reply denies each and every statement and allegation thereof." The finding and judgment of the circuit court was for the defendant, and the plaintiff appeals.
The evidence developed the following facts: The Hannibal & St. Joseph Railroad Company was incorporated by a special act of the legislature of Missouri on February 16, 1847. By the special act approved March 2, 1867, it was authorized to "purchase and own the railway and property of the Quincy & Palmyra Railroad Company." In the year 1859 Capt. John Taylor was the owner of lands extending for three miles along the west shore of the Mississippi river, opposite the city of Quincy, Ill. On the 15th day of April, 1859, he made and entered into an indenture with the Quincy & Palmyra Railroad Company, through its president, Samuel Holmes, by which said John Taylor and his wife, for and in consideration as well of the agreement of the said party of the second part made with said John Taylor, of the first part, to locate, construct, and operate a railroad under the provisions of its articles of association over and across the lands hereinafter granted and conveyed, as also the sum of five dollars, "did remise, release,...
