Hatton v. Kansas City, Clinton & Springfield Railway Company

• Decision Date: 24 December 1913
• Citation: 162 S.W. 227,253 Mo. 660
• Parties: T. S. HATTON et al. v. KANSAS CITY, CLINTON & SPRINGFIELD RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

162 S.W. 227

253 Mo. 660

T. S. HATTON et al. v. KANSAS CITY, CLINTON & SPRINGFIELD RAILWAY COMPANY, Appellant

Supreme Court of Missouri

December 24, 1913

Appeal from Johnson Circuit Court. -- Hon. N. M. Bradley, Judge.

Reversed and remanded (with directions).

John H Lucas and James W. Suddath & Sons for appellant.

(1) The plaintiffs have no such interest as will warrant the exercise of equitable power herein by injunctive process, and there is a plain and adequate remedy at law, the bill on its face being insufficient to constitute a cause of action. (a) Pattison Code Pleading (2 Ed.), sec. 519; State ex rel v. Wood, 155 Mo. 446; Brake Beam Co. v Bakewell, 224 Mo. 222; Missouri Code Pleading, Pattison (2 Ed.), sec. 536. (b) Where there is a plain, adequate and complete remedy at law, a resort to equity is improper. Stalter v. Stalter, 151 Mo.App. 66; Seibel v. Siemon, 52 Mo. 363; Gotcher v. Haefner, 107 Mo. 270; Barton Co. v. Harrington, 71 Mo. 118; State ex rel. v. Aloe, 152 Mo. 466. (2) It will be observed that the action is not that of the State of ouster for failure to discharge the duties of a public character, but that of a controversy between citizens claiming title to certain property real, personal or mixed, the respondents basing their claim on a legal title, resting on the principle of reversion created and arising from an alleged abandonment on the part of the relator. There was no abandonment. Hickman v. Link, 123 Mo. 127; Scarritt v. Railroad, 148 Mo. 683. (3) When the fee simple is condemned, there is no reversion when the particular use for which the condemnation is had has ceased, and the person whose property is condemned cannot complain of any other use. Reichlin v. Lumber Co., 106 P. 777; 2 Eliott, Railroads (2 Ed.), sec. 972a. In the case at bar a majority of the right of way was acquired with covenants of warranty by deeds of conveyance, and the remainder thereof by condemnation with all the rights granted and duties incurred by our statute, and had the appellant desired to abandon the same it could not do so without the acquiescence of the State, it being within the power of the State to compel by writ of mandamus the operation of the road. State v. Railroad, 239 Mo. 234; Fritts v. Railroad, 73 Ark. 92. Hence it necessarily follows that in Missouri the doctrine of abandonment by a railroad company cannot obtain, and the decree herein should be reversed, otherwise we have this situation: the decree rests on the doctrine of abandonment, the railway expresses intention and in fact abandons, a judicial decree is secured, and the power of the State to compel the performance of public duties is at an end. Laws 1913, p. 585; R.S. 1899, secs. 1118, 1909, 3162; Nyce v. Railroad, 61 Kan. 394; Young v. Oviatt, 35 Pa. Sup. 603. (4) If as alleged in the bill the appellant has abandoned the property and it has reverted to respondents, then an adequate remedy at law exists in the recovery of damages for the trespass and conversion by appellant. It is not alleged, nor is it the fact, that appellant is insolvent and unable to respond in damages for the threatened invasion of the rights of respondents, and nowhere does it appear why the respondents are remediless at law, nor why the injury is irreparable. Missouri Code Pleadings, Pattison (2 Ed.), secs. 159-536; Stalter v. Stalter, 151 Mo.App. 67; Marshal v. Penn Co., 44 Pa. Sup. 68; Horton v. Railroad, 55 So. 531.

A. A. Whitsett, James A. Kemper and George W. Bruce for respondent.

(1) The plaintiff's bill or petition states a good cause of action and fully authorized the relief sought against the defendant's interference with or destruction of the abandoned easement. (2) This is the proper action and plaintiffs are entitled to the relief sought and the rule that equity cannot be maintained, where there is an adequate remedy at law does not affect plaintiffs' right of action herein. Towne v. Bowens, 81 Mo. 491; Gleassner v. Brewery Assn., 100 Mo. 508; Skerlock v. Railroad, 142 Mo. 172; Schopp v. St. Louis, 117 Mo. 131; Furbright v. Higginbotham, 133 Mo. 668; Land Co. v. Manning, 98 Mo.App. 248; Nelson v. Kelly, 145 Mo.App. 113; Railroad v. Milling Co., 138 Mo.App. 134; High on Injunctions (4 Ed.), sec. 30, p. 47; Turner v. Stewart, 78 Mo. 480. (3) A public easement may be abandoned by nonuser, coupled with a purpose or intention to abandon, and this may be shown by the acts and circumstances attending the conduct of the parties. Railroad v. Bradbury, 106 Mo.App. 450; Hickman v. Link, 116 Mo. 127; Scarritt v. Railroad, 148 Mo. 682; Investment Co. v. Railroad, 108 Mo. 50; Quey v. Land, 52 S.E. 343; Bunction v. Iaurille, 24 S.E. 803; Norfolk v. Nottingham, 30 S.E. 444; Scott v. Moore, 37 S.E. 342; New England Co. v. Distilling Co., 75 N.E. 84. (4) Upon the abandonment of an easement of a right of way, the right thereto is lost and the original owners may assume the possession thereof. Railroad v. Bradbury, 106 Mo.App. 450; Hastings v. Railroad, 38 Iowa 316; Railroad v. Railroad, 86 N.Y. 107; Railroad v. Railroad, 63 Tex. 529; Railroad v. Railroad, 36 Conn. 196; Fernow v. Railroad, 75 Iowa 526; Smith v. Hall, 103 Iowa 95. (5) All fixtures attached to and put upon the right-of-way described herein, became a part of the realty, and, upon abandonment of the easement, the defendant lost all interest therein, and had no right to remove the same. Hunt v. Railroad, 76 Mo. 115; 3 Wait's Actions and Defenses, p. 379; Jones Real Property, sec. 1729; Van Beureu v. Railroad, 38 N.J.L. 165; Fostlick v. Shaw, 99 U.S. 235; Wade v. Railroad, 149 U.S. 327; Denman v. Railroad, 26 S.W. 304; Railroad v. Bradbury, 106 Mo.App. 450. (6) Abandonment divests title as fully as a conveyance, and it operates from the time of the act of abandonment, or the purpose to abandon became complete. McGoon v. Aukeny, 11 Ill. 558; Gluckauf v. Reed, 26 Cal. 468; Railroad v. Bradbury, 106 Mo.App. 450. (7) The defendant having abandoned the easement, but not having restored the possession, the plaintiffs had no plain, adequate and complete remedy at law, for redress of the wrongs that might be sustained to the realty. Railroad v. Bradbury, 106 Mo.App. 450. (8) The State could not compel the railroad company to operate its road; nor can it restrain it from taking up and removing the irons and materials of the road, at the time the abandonment occurred. 1 Rener on Railroads, p. 573.

FARIS, J. Lamm, C. J., Woodson, Graves, Brown and Walker, JJ., concur; Bond, J., dissents, in an opinion filed.

OPINION

In Banc.

FARIS J. --

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 sometime 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, Missouri, to Kansas City in the State of Missouri, and that the other defendants were agents, servants and employees of the said railway company.

"Plaintiffs further state that they are the owners of the following described real estate, situate in Cass county, Missouri, to-wit:

"A strip of land one hundred 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 & Terminal Branch of the Missouri Pacific Railway Company, which said right of way begins at Pleasant Hill in said Cass county, and runs in a westerly direction to section twenty-five, township forty-six in range thirty-two in said Cass county, which said strips or parcels of land run through and are contiguous to the following described real estate in Cass county, 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 & 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 embedded 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...