Hannibal & St. Joseph R.R. Co. v. Green

• Decision Date: 31 October 1878
• Citation: 68 Mo. 169
• Parties: THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY v. GREEN, Appellant.
• Court: Missouri Supreme Court

68 Mo. 169

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY

v.GREEN, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.

This was an action of ejectment for a parcel of land described in the petition as follows: That part of the southwest quarter of section 13, township 57, range 28, situated and lying within the following boundaries in the town of Hamilton, as described on the plat of said town: beginning on the north line of the right of way of the Hannibal & St. Joseph Railroad where the same is intersected by Burrows street, thence north along said street fifty feet, thence westerly and parallel with said right of way 1,306 feet to the intersection of Frame street, thence south along said street fifty feet to the north line of said right of way of said railroad, thence easterly on the north line of said right of way 1,306 feet to the point of beginning.

In 1855 thirteen persons, among whom was one Albert G. Davis, purchased a tract of land in Caldwell county, embracing the southwest quarter of section 13, township 57, range 28, which was, at their instance, conveyed by Edward M. Samuel, the then owner, to the said Davis, as trustee. Both parties to this action claimed under this deed. The deed declared that it was the intention of the unincorporated company, composed of these thirteen persons, to lay out a town, or towns, on the tract, and that Davis was appointed trustee in order to avoid difficulty in making conveyances in case of death, removal, &c., of any of the parties interested. It invested him with full power and authority, after he should have signified his acceptance of the trust and given a bond in the sum of $10,000 for its faithful execution, to sell and convey all lots that might be laid off in a town, or towns, the conveyances to be in the name of the Prairie City Town Company, if the town should be laid off on section 15, township 57, (one of the tracts conveyed,) and in the name of the Hamilton Town Company, if the town should be laid off on the southwest quarter section 13, township 57, or on certain other lands described. The southeast quarter section 13, township 57, was not covered by the deed. Provision was made for the appointment of a successor in the trust. It was also provided that the trustee should be governed in the price of lots, the terms of payment and the time of selling, by rules to be adopted by a majority of the company, which rules were to be signed by such majority and acknowledged and recorded in Caldwell county. The trustee was to be allowed his expenses and a commission of five per cent. on sales, the net proceeds to be divided among the members of the company.

Davis accepted the trust by an instrument in writing, and in the same, or the following year, laid out the town of Hamilton on the southwest quarter section 13, township 57, and made a plat of the town which was duly signed and acknowledged by him, and was recorded in the recorder's office of Caldwell county. Plaintiff's railroad had already been located at the time this was done. On the 14th day of October, 1859, Davis executed a deed to the plaintiff as follows: Know all men by these presents, that Albert G. Davis and Julia A. Davis, his wife, as trustee of the Hamilton Town Company, of the county of Caldwell, in the State of Missouri, in consideration of the sum of one dollar to them in hand paid by the Hannibal & St. Joseph Railroad Company, in the State aforesaid, have granted, bargained and sold, and do hereby grant, bargain and sell unto the said Hannibal & St. Joseph Railroad Company, their heirs and assigns forever, the following described real estate, to-wit: Two strips or pieces of ground, each fifty feet wide and 1,306 feet long, for depot purposes, extending over, upon and across a part of the tract of ground known as the town of Hamilton, being a part of the southeast quarter of section 13, in township 57, range 28, in Caldwell county, Missouri, beginning at the west side of Burrows street and running to the east side of Frame street, one of said strips being north of and adjoining the tract of ground now occupied by the Hannibal & St. Joseph Railroad Company, a more full description of which said depot grounds will appear by reference to the plat of said town of Hamilton now on file in the recorder's office of said county of Caldwell, to have and to hold the same, &c., &c. This deed was immediately recorded. In April, 1860, the records of Caldwell county, including the town plat and the record of this deed, were destroyed by fire. In the same year Davis executed another plat and filed it in the recorder's office for record. In 1866, Thomas W. Higgins having succeeded Davis in his capacity of trustee, conveyed to Ward and Thornton a lot described as “lot one in block twelve in the town of Hamilton, Caldwell county.” Ward and Thornton subsequently conveyed to defendant and one Foley.

At the trial, Albert G. Davis being called as a witness on the part of the plaintiff, testified that at the time of and before the execution and filing of the first plat, the plaintiff's railroad had been located 280 feet north of its present location; that said railroad was represented on said plat as being located 280 feet north of its present location, but that the location was afterwards, in the year 1859, changed to its present location, and that the plat which he executed in the year 1860 showed the actual location of the road as constructed; that the second plat was drawn by the engineer of plaintiff from a survey made by its said engineer, and was furnished witness to be executed and filed for record, and that witness, at the time of the execution and filing the second plat, was the railroad agent of plaintiff at Hamilton, and that he filed said plat in the recorder's office of the said county; that by the second plat the railroad was represented as occupying a strip of ground fifty feet wide on the north side of the center line of the railroad as now located, and that no part of lot one in block twelve was within fifty feet of the railroad; and that said lot was represented on the original plat as a full lot forty-four feet wide, and as being wholly outside the limits of the right of way of the railroad, but that he did not remember positively how it was represented on said second plat, although, to the best of his recollection, it was represented on the second plat as a full lot; that the second plat could not be found.

Joseph Willis testified that a part of the inclosure of lot one in block twelve came within 100 feet of the center line of the railroad. John Smith, a civil engineer, testified that he had made a survey of the premises in controversy, and that a strip of land 100 feet wide, and extending along and from the north side of the center line of the railroad would include a strip of land in block twelve, lot one, twenty-three feet four inches on the west end, and twenty-seven feet five inches on the east end, being on the south side of said lot.

Vincent Bowman testified on the part of the defendant that he had seen said second plat; that the right of way of the railroad where it passed along said lot was thereon designated as being fifty feet wide only, but that he did not remember how said lot was shown, never having examined with reference to it. There were numerous fractional lots along the line of the road as shown by said second plat. Thomas W. Higgins, a witness for defendant, testified that he sold the lot in question to said Thornton and Ward, relying on the statement in said second plat that the plaintiff's right of way only extended fifty feet north of the center line of the road-bed, and that he had so represented to said Thornton and Ward at the time of making said sale. That said second plat was the only guide he had to go by, as he had no knowledge of said deed from Davis to plaintiff, the record of the same having been destroyed in 1860, and not having been re-recorded until 1869. Other witnesses testified that Thornton and Ward and defendant had made lasting improvements on the land.

Defendant admitted that at the time of the commencement of the suit he was in possession of the undivided one-half of lot one, block twelve, and it was agreed that he was not in possession of, and that he had never set up any claim to any portion of the land described in the petition except said lot one. There was no evidence that before executing the deed to plaintiff, Davis ever gave bond as required by the trust deed, or that the majority of the town company ever adopted or filed any rules regulating sales by the trustee.

For the plaintiff the court instructed the jury as follows: 1. If the jury believe from the evidence that on the 14th day of October, 1859, Albert G. Davis made to plaintiff a deed for the land described in plaintiff's petition, and that said Davis was, at the time of making said deed, in possession of the land described therein as trustee of the Hamilton Town Company, and further believe that the defendant, without permission from plaintiff, entered upon the land described in plaintiff's petition, or any part thereof, and was at the time of the institution of this suit, in possession of the same, they will find for the plaintiff. 2. If the jury find for the plaintiff they will describe in their verdict the land in possession of defendant to which they believe the plaintiff is entitled.

The court refused to give the following instructions offered by defendant: 1. The jury must find for the defendant. 2. If the jury find from the evidence that the plaintiff, about the year 1860, sent to its agent at Hamilton a plat of its depot grounds in said town of Hamilton, which showed that its right of way, south of said lot, only extended fifty feet north of the center line of its railroad track, and did not include any part of said lot, and that said company caused or permitted said plat to be filed by its said agent, and...