Hobart-Lee Tie Co. v. Stone

• Decision Date: 26 January 1909
• Parties: HOBART-LEE TIE CO. v. STONE.
• Court: Missouri Court of Appeals

117 S.W. 604

135 Mo. App. 438

HOBART-LEE TIE CO. v. STONE.

St. Louis Court of Appeals. Missouri.

January 26, 1909.

Rehearing Denied March 23, 1909.

1. TRESPASS (§ 20) — POSSESSION OF PLAINTIFF.

Trespass can be maintained on constructive possession, as well as on actual possession.

2. INJUNCTION (§ 48) — REPEATED TRESPASSES.

Injunction is a proper remedy in case of repeated and continuous trespass.

3. BOUNDARIES (§ 15)—NAVIGABLE WATERS.

The owner of land bounded by a navigable river owns to the water's edge at low-water mark.

4. NAVIGABLE WATERS (§ 39) — RIPARIAN RIGHTS.

The owner of land bounded by a navigable river has the right of access to the navigable part of the river in front of his premises, and the right to use of the waters for all purposes not inconsistent with the public right of navigation therein.

5. CARRIERS (§ 14)—DISCRIMINATION.

A lease or license by a railroad company of its land between its tracks and a river, held and treated by it as part of its right of way or depot grounds, is not for a legitimate purpose, but constitutes a discrimination between shippers, in violation of Rev. St. 1899, § 1127 (Ann. St. 1906, p. 972); its effect, and presumably its intent, being to give one company engaged in floating ties down the river for shipment by the railroad an advantage over others in the same business, in getting them to the cars.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Suit by the Hobart-Lee Tie Company against E. E. Stone. Decree for defendant. Plaintiff appeals. Affirmed.

A. P. Murphy, for appellant. Watson & Holmes, for respondent.

REYNOLDS, P. J.

This suit was originally instituted in the circuit court of Phelps county, by filing a petition, sworn to by the attorney for plaintiff, in the office of the clerk of that court, on the 28th of May, 1907. On the filing of the petition, the circuit court of the county not being in session and the judge not then in that county, it was presented to the judge of the probate court, who on the same day ordered that a temporary writ issue, "enjoining the defendant, his servants, agents, and employés, from landing his rafts of ties and timber upon and from hauling out onto, upon, and across, or from piling upon and obstructing, and from obstructing the water course alongside of and on, and from interfering in any manner with the possession of the plaintiff of, in and to the premises described (the description of the premises then being set out as in the original petition) until the further order of the court, upon plaintiff filing with the clerk of the circuit court a bond in the sum of $250, conditioned as required by law." Copies of the petition and order as well as a summons were duly served returnable to the September term of the circuit court. At the September term, 1907, of the circuit court of Phelps county, plaintiff filed an amended petition, in which it avers: That it is a corporation, organized and existing under the laws of this state, engaged in buying and selling timber and railroad ties, and that at the times mentioned in the petition it was and still is doing business in Phelps county, "principally along the Gasconade river and the town of Jerome therein; that ties and timber purchased along the Gasconade river are conveyed by means of rafts down said river to plaintiff's landing near Jerome, removed from the water upon and then stored on its real property at and near Jerome and thence transported by rail, and in the carrying on of its business it is necessary to hold and use tracts of land for the purpose of drawing its timber and ties out of the water and for piling and storing its timber thereon until cars can be procured for loading the same for shipment." It is further averred that for that purpose plaintiff leased from the St. Louis & San Francisco Railroad Company, being the legal owner of the land, certain real estate in Phelps county, which is described as follows: "Beginning at a point on the west bank of the Gasconade river, at Jerome, Phelps county, Mo., 100 feet perpendicularly distant in a northeasterly direction from the center line of the St. Louis & San Francisco Railroad; thence westerly and northerly on a curve line parallel to and 100 feet from said center line, to a north line of section 24, township 37 N., range 10 W.; thence east on said north line of section 24 to the west bank of said Gasconade river; thence south meandering the west bank of said Gasconade river, to the place of beginning." It appears that this tract contains about 5 acres and has about 625 feet along the river front, according to the plat in evidence. We will hereafter refer to this piece as the "river tract." Three other parcels of land, designated in the amended petition as parcels Nos. 1, 2, and 3, are then described, which are apparently on the line of the right of way of the St. Louis & San Francisco Railroad Company, near and around the station at Jerome. The first tract seems to run 510 feet along the right of way line, the second tract 830 feet along the right of way line, and the third tract 210 feet along the right of way line. As we understand the testimony these three parcels do not appear to be contiguous, but in the original petition and in the order granting a temporary injunction they are referred to as "a strip of land about 2,100 feet long and 50 feet in width along the right of way of the St. Louis & San Francisco Railroad adjoining and alongside of its sidetrack, in the town of Jerome." They will be referred to hereinafter as "the parcels," or by number.

It is then averred in the amended petition that the leases are for periods of five years, and that plaintiff entered into possession and is now and has for many years heretofore been in possession of the premises, using the land for the purpose of carrying on its business, "except as it is impeded and hindered by the defendant, as will fully appear as hereinafter stated. Plaintiff states for its proper use and enjoyment of the aforesaid premises and in the carrying on of its business, it is necessary that the same be free from trespassers, and that the waters of the Gasconade river alongside of the same be and remain unobstructed so that the plaintiff may land its rafts at and on its said property and remove the same from the water and store the same until it can be transported as aforesaid." It is then averred: That the defendant, "who is also engaged in buying and selling ties and timber, and well knowing the premises, and his servants and agents, over the objection of this plaintiff and to its detriment and irreparable injury, not susceptible in computation in damages, and without legal right or lawful authority, did on May 20, 1907, and divers other times, land his rafts of ties alongside of and on plaintiff's property, did haul the same out of the water and on and over, across, and onto plaintiff's land as above described, and piled the same thereon, and obstructed the plaintiff's property and the use of the same for three days, when he removed his said ties. That the plaintiff was unable to use portions of his premises for storing or piling ties and timber thereon, until it could procure cars for the shipment of the same. That by the defendant piling his ties on plaintiff's property, it was obstructed from the railroad tracks where the same could be loaded on the cars. Then on May 27, 1907, the defendant again landed a raft of ties alongside of and on the property of plaintiff as above described, and again, against the will of the plaintiff, hauled the same out of the water onto the plaintiff's land, and conveyed the same over, across, and onto and piled the same on plaintiff's premises, as aforesaid, and again used, obstructed, and damaged the property as aforesaid. That on or about June 6, June 25, June 28, July 10, August 6, and August 27, 1907, the defendant, his servants and agents, again and repeatedly trespassed upon the plaintiff's land as above described, in the same manner as aforesaid. Plaintiff states that the continued and threatened and wrongful use of the plaintiff's property and premises, as aforesaid, is a permanent source of annoyance to it, and to its enjoyment in the exercise thereof, and the use of its property and an injury thereto, and to the title thereof, that the repeated and threatened continuance of the wrongs of the defendant in trespassing on plaintiff's property are of such a character that it cannot be adequately and fully compensated by an award of damages, even were such damages capable of computation, and by reason of the premise plaintiff is without an adequate remedy at law, and is remediless except by the interposition of a court of equity. Wherefore plaintiff prays that the defendant, his servants, agents, and employés, be restrained and enjoined from landing rafts or ties or timber upon the plaintiff's premises; from hauling his ties out, onto, and across the same; from piling his ties upon and obstructing the property of the plaintiff; from obstructing the water course alongside of and on plaintiff's premises; from interfering in any manner with the possession of the plaintiff of, in and to its said premises; and for such other and further relief as to the court shall seem meet and just."

This amended petition was also sworn to, and at this same September term the defendant filed his answer, in which he admits, in the first paragraph, the incorporation and organization of the plaintiff, as averred, and that defendant is the person and is engaged in the occupation as alleged in the petition, but denies all other allegations in the petition contained. The second paragraph of the answer is as follows: "Further answering, the defendant says that, if the plaintiff has from the St. Louis & San Francisco Railroad Company the leases on the lands as alleged in its petition, the same is wholly void and of no force and effect, for the reason that said railroad company is a corporation duly...