Defendant railroad company originally acquired its right of way in question by grant. The last engine and caboose went over the track in the first part of the year 1902, and a part of the right of way and track was fenced for pasture in the latter part of 1902, but in May or June of 1905 part of the track was repaired and a work train run over it. Some of the right of way fence was sold, and the company's agent stated that they were going to remove the track, and that the right of way would revert to the original grantors. Held, that the circumstances did not show an abandonment by the company of the right of way and property affixed thereto.
7. RAILROADS (§ 82) — ABANDONMENT OF RIGHT OF WAY—EFFECT UPON FIXTURES.
The abandonment by a railroad company of a part of its right of way does not transfer title to the rails, ties, and other fixtures to the original grantors of the right of way.
8. RAILROADS (§ 82)—POLICY OF LAW.
The law does not favor forfeitures.
9. FIXTURES (§ 26) — CONSENT OF LANDOWNER.
In analogy to the converse of the rule that structures erected upon another's land with the owner's consent continue to be personal property, rails and other fixtures affixed to a railroad right of way by trespass without the landowner's consent would be affixed to the real estate.
10. FIXTURES (§ 1)—ELEMENTS.
To create a fixture there must be a real or constructive annexation of the property to the soil; it must be adapted to the ordinary uses of the land to which the fixture is annexed, and the party annexing it must intend that it permanently become a part of the freehold; but the element of intention controls.
Bond, J., dissenting.
In Banc. Appeal from Circuit Court, Johnson County; N. M. Bradley, Judge.
Suit by T. S. Hatton and another against the Kansas City, Clinton & Springfield Railway Company. From a decree for plaintiffs, defendant appeals. Reversed and remanded, with directions to dismiss the bill.
This is a proceeding in equity whereby plaintiffs seek to enjoin the defendant from entering upon certain real estate, averred in the petition to be an abandoned right of way of defendant, and removing therefrom certain right of way fences, steel rails, ties, bridges, abutments, and cattle guards. The action was commenced some time in 1905 and tried in 1908 in the circuit court of Johnson county. Upon the trial plaintiffs prevailed, and a decree was entered in their favor as prayed for in the petition. From this decree defendant has appealed.
Upon the trial defendant interposed a demurrer, chiefly upon the ground that the amended petition filed by plaintiffs in the cause failed to state any cause of action. This demurrer was overruled, whereupon defendant answered over by a general denial. The point raised as to the sufficiency of the petition was again made at the commencement of the hearing of the testimony below by an objection to the offering of any testimony for the lack of sufficiency of averment in the petition. On account of these attacks upon the petition, and upon the sufficiency of the evidence and for the additional reason that other points made may be somewhat clarified, we append the petition upon which the case was tried, formal parts omitted: "Plaintiffs, for their amended petition herein, state that the defendant, the Kansas City, Clinton & Springfield Railway Company, is a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and was organized for the purpose of operating a railroad line leading from Springfield, Mo., to the city of Kansas City in the state of Missouri, and that the other defendants were agents, servants, and employés of the said railway company. Plaintiffs further state that they are the owners of the following described real estate, situate in Cass county, Mo., to wit: A strip of land 100 feet wide, being the lands formerly used as a right of way of the defendant, the Kansas City, Clinton & Springfield Railway Company, and originally known as the right of way of the Pleasant Hill and terminal branch of the Missouri Pacific Railway Company, which said right of way begins at Pleasant Hill in said Cass county, Mo., and runs in a westerly direction to section 25, township 46, in range 32 in said Cass county, Mo., which said strips or parcels of land run through and are contiguous to the following described real estate in Cass county, Mo., to wit: [Here follow descriptions of the tracts of land through which the right of way runs, and not pertinent herein.] Formerly known and called `the right of way of the Pleasant Hill and Lawrence Branch of the Pacific Railroad.' Plaintiffs further state
that they and their grantors have been the servient owners of said real estate since the ____ day of ____, 19__. Plaintiffs further state that on the said lands and on and along the route of the said railroad and the strips of land above described, formerly used as a right of way, as aforesaid, there are railroad ties imbedded in the ground about six inches apart for the entire length of said strips of land and that stretched across and nailed or spiked to the said ties are steel and iron rails; that there are fences on each side of said right of way, in places, and a large number of bridges, and abutments, side tracks, and cattle guards, all of which are attached to and imbedded in the soil, earth, or real estate, and becomes and are a part thereof. Plaintiffs state that prior to the ____ day of ____, 18__, the defendant corporation, the said Kansas City, Clinton & Springfield Railway Company, attempted to operate railway trains of cars and engines over and along the said right of way and upon the track aforesaid; that on the ____ day of ____, 18__, the defendant corporation ceased to use said right of way and to operate or run any locomotives or trains of cars over and along said track or any part thereof, or to use, operate, or occupy the same or any part thereof, and ceased to use or occupy the said right of way and to operate or attempt to operate any trains of cars thereon, and on any part thereof, and the ownership and the right to the possession of said strips of ground and other property thereon passed to and vested in the owners of the land contiguous thereon. Plaintiffs further state that the defendants notified these plaintiffs and their grantors and the servient owners of said real estate that they would no longer occupy or use the right of way for railroad purposes but would cease to use and occupy the same as such, and has never since said time run or attempted to run any railroad trains thereon or to use the same for railroad purposes in any way or manner whatever. Plaintiffs further state that the defendants have threatened to go upon said real estate and to tear up and remove therefrom said rails, ties, bridges, piers, abutments, and fences and to deprive the plaintiffs of the same, and that the said defendants are now about to, and unless they be restrained and enjoined therefrom will, tear up and remove said tracks, ties, rails, bridges and abutments, fences, and cattle guards off of and away from said premises. Plaintiffs further state that the removal of said rails, ties, bridges, piers, abutments, fences, and cattle guards as aforesaid will injure the real estate above described and greatly depreciate the value thereof, and that, unless defendants be restrained and prevented from removing the same, the plaintiffs will sustain irreparable injury in the loss of said property, and damage to their said real estate; that the plaintiffs have no adequate remedy at law afforded them by which to compensate themselves for injury and damages which would ensue to these plaintiffs and which they would sustain by reason thereof. Wherefore plaintiffs pray the court to perpetually restrain and enjoin the defendants from entering upon said real estate for the purpose of removing said fences, rails, ties, bridges, tracks, abutments, and cattle guards therefrom, or from taking up and converting the soil of said real estate, or doing any other act tending to remove or destroy any of the property above described; and that in the meantime a temporary injunction may be allowed restraining said defendants, or associate agents, contractors, and servants or any other persons acting in aid or assistance of them or either of them from removing or injuring in any way any of the fences, rails, ties, bridges, piers,...
