Hubbard v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Court: Missouri Supreme Court
• Writing for the Court: NAPTON
• Citation: Hubbard v. Kansas City, St. Joseph & Council Bluffs R.R. Co., 63 Mo. 68 (Mo. 1876)
• Decision Date: 31 May 1876
• Parties: ROBERT G. HUBBARD, Plaintiff in Error, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Defendant in Error.

63 Mo. 68

ROBERT G. HUBBARD, Plaintiff in Error,

v.KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Defendant in Error.

Supreme Court of Missouri.

May Term, 1876.

Error to Buchanan Circuit Court.

Bennett Pike & William Heren, for Plaintiff in Error.

I. The condition named in the relinquishment should have been construed by the court as precedent and not subsequent. The relinquishment had no immediate operation, but was dependent upon the fulfillment of the condition.

Plaintiff did not part with his absolute title to the land, but only with the right of way, the fee remaining in him, subject to the easement conferred on the company. (Andrews vs. Lester, 32 Me. 394; Dale vs. Pa. R. R. Co., 2 Iowa, 288, and see especially Taylor vs. Cedar Rapids, & St. Paul R. R. Co., 25 Iowa, 371.) After the breach, at plaintiff's election, the estate was defeated. (Siglar vs. Van Riper, 10 Wend. 414.)

It is no objection to the action that the plaintiff might sue on the covenant, or for specific performance, or proceed in equity to have the deed of relinquishment set aside. (2 Washb. Real Prop. 15.)

II. No re-entry was here required to enable plaintiff to maintain trespass; his general ownership was sufficient for that purpose. (Grogun vs. Jones, 2 Gil. & Johns. 183; 8 Johns. 432; 11 Johns. 285; 8 Cow. 115; 10 Wend. 110; 11 Mass. 519.)

Stringfellow & Hall, for Defendant in Error.

I. The condition, if one at all, was subsequent. The trespasses complained of were the very acts contemplated by the conveyance, and must have taken place before the condition could be performed. The failure to perform it could not invalidate the previous lawful acts and convert them into trespasses.

II. This is not an action based on a failure to perform the condition, and its performance or non-performance cannot be investigated.

NAPTON, Judge, delivered the opinion of the court.

This petition charges the defendant with entering without leave and wrongfully, the farm of plaintiff, and building a railroad through it, one mile and three-quarters, occupying about one-hundred feet in width, and cutting the farm up, and by its grading rendering portions of it useless, and causing a number of acres to be overflowed, to the damage of the plaintiff of $2,500. Judgment is asked for the damages.

The answer denies that defendant without leave and wrongfully entered on the land, and denies all the other allegations of the petition.

Upon the trial the following instrument in writing was produced, which, it is conceded, was executed and signed by the plaintiff: “Relinquishment of right of way. In consideration of five dollars in hand paid, I hereby release, relinquish and convey to the Missouri Valley R. R. company, its successors and assigns, the right of way for a railroad to a width of one hundred feet along such line as may be located by said company on the tracts of land, situated in Nodaway county, in the State of Missouri, known as (here follows a description of the land mentioned in the petition). Depot to be located on the N. W. qr. of 26, or S. W. qr. of 23.

As witness my hand and seal this, the 28th day of November, 1867.

[signed]

D. G. Hubbard.

Witness

Joseph E. Swift.”

The plaintiff offered to prove that the depot of defendant had not been located on the land of plaintiff, as the deed of relinquishment required, and that this location was the sole consideration which induced him to relinquish. This evidence was excluded and the plaintiff took a non-suit, which non-suit he afterwards moved to set aside, and this motion being overruled the cause comes to this court.

We have considered it unnecessary to state various other points which in the course of the trial were presented in this case, since the decision of this court in Baker vs. C., R. I. & P. R. R. Co. (57 Mo. 265), is conclusive that the present action could not be maintained under the facts proved in this case. The petition aleges a wrongful and illegal entry, and the evidence shows an entry by leave, and...