Hannibal & St. Joseph Railroad Company v. Frowein

• Decision Date: 21 May 1901
• Citation: 63 S.W. 500,163 Mo. 1
• Parties: HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant, v. FROWEIN
• Court: Missouri Supreme Court

63 S.W. 500

163 Mo. 1

HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant, v. FROWEIN

Supreme Court of Missouri, Second Division

May 21, 1901

Appeal from Marion Circuit Court. -- Hon. Reuben F. Roy, Judge.

Affirmed.

Spencer & Mosman for appellant.

(1) The trial court, in respect to the question of abandonment, did not find that plaintiff had entirely abandoned all claim to said tract of land, and all right to use it for any railroad purpose whatsoever. Its finding was that "plaintiff ceased to use any portion of the strip five hundred feet in width conveyed by deed from John Taylor except for the purpose of the storage of cars, and that such non-user was with the intention on the part of the plaintiff to abandon its route over said land, and to adopt the track leading across the bridge over the Mississippi river in place of its former route." This was nothing more than a finding that there had been a cessation of a particular use of the land viz., as the route for the main line of its road. Cessation of use is not abandonment. The distinction between ceasing to use a tract of ground for a particular purpose, and the entire abandonment of all claim to the ownership of the land and all right to use it for any purpose whatever, is very clear. Yet the trial court awarded the land to the defendant because its use for a particular purpose, under the exigencies of commerce, had been abandoned. "Mere non-user of a way or easement created by deed, without proof of adverse enjoyment by the owner of the land, is not sufficient proof of an abandonment of the right." Bannon v. Augier, 2 Allen, 128; Arnold v Stevens, 24 Pick. 106. (2) We contend that this finding that the non-user by the plaintiff was with the intent to abandon its route over the land does not entitle the defendant to a judgment. To have that effect there should be evidence tending to show a relinquishment, a surrender of all right to use the land. 1 Am. and Eng. Ency. of Law, p. 1, and note 5; Hickman v. Link, 116 Mo. 127; Clark v. Hammerly, 36 Mo. 639; Pierce v. Fugate, 49 Mo. 450; Tayon v. Ladue, 33 Mo. 208. To constitute an abandonment of easement, acquired by grant, acts must be shown of such an unequivocal nature as to indicate a clear intention to abandon. Dyer v. Sandford, 9 Metcalf, 395; Hayford v. Spokesfield, 100 Mass. 491; Roanoke Inv. Co. v. Railroad, 108 Mo. 64; Railroad v. Railroad, 129 Mo. 70.

F. L. Schofield and H. J. Drummond for respondent.

(1) The deed under which plaintiff claims did not convey an absolute title. The premises were "conveyed strictly and exclusively for the railroad uses of the said company, their successors and assigns, and for no other uses and purposes whatever." This amounted to a condition or limitation in the estate conveyed. The "railroad uses" to which the grantee might devote the property, must be ascertained by and limited to the manifest intention of the parties as gathered from the whole instrument. This intention was obviously that the railroad company should locate, construct and operate a railroad over and across the land to Taylor's ferry landing, and deliver to Taylor, for transportation across the Mississippi river, all its freight and passengers to and from the city of Quincy, so long as said Taylor and his assigns should keep and operate a ferry of sufficient capacity to perform the company's ferry business with dispatch. This was the continuing consideration for which the deed was executed. These were the "railroad uses" to which the estate granted was limited. When the plaintiff abandoned these uses, and by diverting its road with all its business to the bridge, and tearing up its tracks and sidetracks to the ferry landing, and selling off its terminal buildings, put it out of its power to use the land for any railroad purpose or use beneficial to Taylor, the estate conveyed in the deed thereby ceased and determined. An implied condition, or condition in law, is one which the law implies either from its being always understood to be annexed to certain estates or as annexed to estates held under certain circumstances. 6 Am. and Eng. Ency. of Law, p. 500; 2 Washburn Real Prop., 2, 3; Tiedeman Real Prop., sec. 271; Ellis v. Kyger, 90 Mo. 600; O'Brien v. Wagner, 94 Mo. 93; Clarke v. Brookfield, 81 Mo. 503; Messersmith v. Messersmith, 22 Mo. 369; Tiedeman Real Prop., sec. 281; 2 Washburn Real Prop., 23, 26; 4 Kent Com., 128; Owen v. Field, 102 Mass. 90; Smith v. Smith, 23 Wis. 176; Dumey v. Schoeffler, 24 Mo. 170; Ashley v. Warner, 11 Gray, 43; Witt v. Railroad, 38 Minn. 122; Miller v. Miller, 17 Or. 423; Cravens v. White, 73 Tex. 577; Bassett v. Budlong, 77 Mich. 338; Close v. Railroad, 64 Iowa 149. The controlling canon for the construction of deeds, as of wills and other instruments of writing, is to ascertain the meaning of the grantor from the words he uses, in the light of the circumstances which surrounded him and attended upon his use of them. Long v. Timms, 107 Mo. 512; Bruensmann v. Carroll, 52 Mo. 313; Gibson v. Bogy, 28 Mo. 478; Davis v. Hess, 103 Mo. 31; Long v. Wagner, 47 Mo. 178; Wolfe v. Dyer, 95 Mo. 545; McCullock v. Holmes, 111 Mo. 445; Lakenan v. Railroad, 36 Mo.App. 363. (2) Plaintiff must be held to have abandoned the whole of the conveyed strip of land. Its ceasing to run and operate its railroad as a railroad, over and across the land to the ferry; its building a new railroad around and away from the land and ferry to the bridge; its absolute and permanent quitting of every use which the deed clearly intended, and putting it out of its power ever again to resume such use, amounted to an abandonment in law without further proof of intention. Ins. Co. v. Railroad, 108 Mo. 50; Railroad v. Railroad, 129 Mo. 62; Scarritt v. Railroad, 148 Mo. 676; Stacy v. Railroad, 27 Vt. 39; Hickox v. Railroad (Mich.), 44 N.W. 143.

GANTT, J. Sherwood, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

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 two and partly in fractional section 3, township 59, range 5, west, in Marion county, Missouri, a strip of ground five hundred feet in width along the west bank of the Mississippi river and extending westwardly a distance of 2,209 feet.

The 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 fifteenth 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 fifteenth 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 and 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 &...