Hunt v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 115
• Parties: HUNT v. THE MISSOURI PACIFIC RAILWAY COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

76 Mo. 115

HUNT

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1882.

Error to Cooper Circuit Court.--HON. GEO. W. MILLER, Judge.

AFFIRMED.

Draffen & Williams for plaintiff in error.

Defendant had the right to remove the depot. Although the proceedings for condemnation were irregular and void, and the company did not acquire plaintiff's title to the lot, still the depot was placed there in good faith, and without objection from plaintiff, and it did not thereby become part of the realty. Deitrich v. Murdock, 42 Mo. 279; North. Cent. R'y Co. v. Canton Co., 30 Md. 347; s. c., 8 Am. Law Reg. (N. S.) 540; Wickliffe v. Clay, 1 Dana 585. Plaintiff knew that the depot was being built, and made no objection. The company understood that it had contracted for the whole lot. The plaintiff's agent saw that the depot was being built, and said nothing. Under the circumstances it did not become part of the realty. Lowenberg v. Bernd, 47 Mo. 297; Goodman v. R. R. Co., 45 Mo. 33; Matson v. Calhoun, 44 Mo. 368.A. & J. F. Lee, Jr., for defendant in error.

The proof shows that the depot was built upon plaintiff's land by defendant's lessor, with full knowledge of the fact that it was her property; that she did not know at the time, nor did her agents, that the depot was on her lot, and they at no time thereafter ratified the act of the company; that such ratification, even if made, is admitted to have been made only after the building was in progress; that such a ratification would have been void, and the building, notwithstanding, remain the property of the plaintiff. Under these circumstances, it became a part of the realty and defendant had no right to remove it. Ewell on Fixtures, 251; Madigan v. McCarthy, 108 Mass. 377; s. c., 11 Am. Rep. 371; Howard v. Fessenden, 14 Allen 128; 2 Minor's Inst., 535; Burrill Law Dic. “Fixtures;” Gibbs v. Estey, 15 Gray 588; Huebschmann v. McHenry, 29 Wis. 655; Baldwin v. Breed, 16 Conn. 60; Climer v. Wallace, 28 Mo. 559.

HOUGH, J.

A perpetual injunction was decreed by the circuit court in this case, restraining the defendant from removing from the north half of lot 167, in the town of Boonville, that portion of a building used by the defendant as a freight depot, which had been erected on the north half of said lot. There is no controversy in this proceeding as to the ownership of the north half of lot 167, and the only question is, whether the building was erected upon the plaintiff's lot under such circumstances as will entitle the defendant to recover it. The entire structure is seventy-five feet long and twenty-six feet wide, and is surrounded by a platform twelve feet wide. Lot 167 abuts longitudinally upon Second street, along which the defendant, as lessee of the Boonville, St. Louis & Southern Railway Company, operates a railroad. The depot building is situated upon the west side of lot 167, adjoining said street and near the center of said lot, and extends thirty-one feet nine inches northwardly on the north half of said lot, and is used by defendant in connection with its said road. It was erected by the Osage Valley & Southern Kansas Railroad Company in the year 1868, pending proceedings by that company to condemn the entire lot, which were instituted on September 17th, 1868, and was completed in November of that year, and together with the road was subsequently transferred to the Boonville, St. Louis & Southern Railway Company, the lessor of the defendant. The condemnation proceedings were subsequently held to be void, and to confer upon said company no right to the possession of the lot in question.

When notice of proceedings to condemn was given, the plaintiff and James H. Lucas were shown by the record of deeds to be tenants in common of said lot, and said company, during the pendency of those proceedings, entered into negotiations with said Lucas, who was also agent of the plaintiff for the purpose of making sale of her property, and neither of whom lived in Boonville, to purchase the lot. Mr. Lucas referred them to one William M. Ells, of Boonville, for the sale of the lot.

It appears from the record that on the 15th day of June, 1868, the plaintiff released to James H. Lucas her interest in the south seventy feet of said lot, (for convenience we will call it the south half of said lot,) and by deed of the same date James H. Lucas released to plaintiff all his interest in the north half thereof. These deeds were acknowledged respectively on May 10th, 1869, and January 4th, 1869, and were both recorded on October 10th, 1870. On July 18th, 1868, James H. Lucas conveyed the south half of said lot to Clemence Ells, wife of W. M. Ells. This deed was acknowledged January 4th, 1869, and recorded January 15th, 1869, and was probably delivered between the last two mentioned dates.

The president of the Osage Valley & Southern Railroad Company, and Wm. M. Ells had several interviews in regard to the sale of the lot, the precise dates of which are not given; and there is a conflict in the testimony of these persons as to what occurred at those interviews. The president of the road testified that Ells offered him the entire lot for $500, which he agreed to pay, and that the depot was constructed by the company, in good faith, relying upon the parol agreement of purchase. Ells testified that he only offered to sell his wife's half for $500, and never offered to sell the whole lot; that he was not the agent of Mrs. Hunt, the plaintiff, and had no authority to make any contract for her. There is a circumstance connected with the condemnation proceedings which strongly tends to corroborate the testimony of Ells, and to show that the president of the road was in error in his statement. In August, 1868, after Mr. Lucas received notice that proceedings would be instituted in September to condemn the lot in question, and after the date of the deed to Mr. Ells for the south half of the lot, he wrote to Mrs. Ells, on the back of the notice sent to him, stating that the lot was...