Idalia Realty & D. Co. v. Norman's Southeastern Ry. Co

• Citation: 219 S.W. 923
• Decision Date: 02 March 1920
• Docket Number: No. 19200.,19200.
• Court: United States State Supreme Court of Missouri
• Parties: IDALIA REALTY & DEVELOPMENT CO. v. NORMAN'S SOUTHEASTERN RY. CO.

219 S.W. 923

IDALIA REALTY & DEVELOPMENT CO. v. NORMAN'S SOUTHEASTERN RY. CO.

No. 19200.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court Stoddard County; W. S. C. Walker, Judge.

Action by the Idalia Realty & Development Company against Norman's Southeastern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Wammack & Welborn, of Bloomfield, and Oliver & Oliver, of Cape Girardeau, for appellant.

J. L. Fort, of Dexter, and Davis & Hardesty, of Cape Girardeau, for respondent.

BROWN, C.

The petition filed February 5, 1915, is in two counts. The first of these is to adjudicate title under the provisions of section 2535 of the Revised Statutes of 1909, and the second in ejectment.

The property involved, and of which plaintiff claims absolute ownership, is described as follows in each count:

"A certain strip of land on which is now located a tramroad, described as follows: "Beginning near the southeast corner of section 19, township 25, range 12 east, in Stoddard county, Mo., extending thence northwesterly to near the southeast corner of the southwest quarter of the southwest quarter of the northwest quarter of section 18, township 25, range 12, thence northwesterly, curving somewhat to near the southwest corner of the northwest quarter of the northwest quarter of said section 18, thence north just inside the west line of said section to the northwest corner of said section, and continuing north just inside the west line of section 7, of said township and range to near the southeast corner of section 12, township 25 range 11, thence in two branches northwesterly into the southeast quarter of said section 12, township 25, range 11."

The petition further states that plaintiff is the owner of said strip of land on which the said tram is located, and all the ties, steel rails, and other material of which the said tramway is constructed.

By the answer defendant claims title to the strip of land on which the road mentioned in the petition is located as defined and indicated by certain fences, and which, with with the ties, rails, and other material thereof mentioned in the petition constitutes its read, and also pleads the ten-year statute of limitation, and also dedication and estoppel, as well as title by conveyance in writing. All these defenses are pleaded with much detail. At the trial a jury was waived by both parties, and much evidence was introduced, and at its close the court at request of the defendant made the following written finding of facts:

"The court finds that under the contract of August 16, 1899, there was a sale of the right to cut timber and to use the right of way, both limited to five years' removal and user, respectively; that the railroad was built during 1900, under the terms of the contract; that at the expiration of that time, and upon the giving of the notice to surrender possession of the S. E. ¼, S. E. ¼ of section 12, township 25, range 1 and refusal by Norman, the possession of the right of way became adverse, and that such possession ripened into ownership of the easement of right of way in August, 1914. This suit was brought in February, 1915. The finding will be for the defendant upon the defense of a averse possession, extending only to the land actually occupied by the roadbed and adjacent land necessarily used in support and maintenance thereof, fixed by calculation at 19 feet in width, lying in equal parts upon each side of tie center of the track as located upon the ground, and fixed by the testimony of Engineer Dunn, witness for defendant.

"That at the beginning of the adverse occupancy mentioned above, the premises, to wit, the right of way, were used for a railroad; that it has been so used during all of the time since then, and that the defendant, as grantee of the original occupant, has and owns all of the rights in said premises that are granted by the laws of the state to any other railroad, until and unless the same are abandoned by it by such acts and facts as would constitute abandonment by any other railroad under the law."

This judgment for defendant was accordingly rendered.

During the trial the following contract was put in evidence by defendant.

"This agreement, made and entered into this 16th day of August, A. D. 1899, by and between Stephen B. Hunter of the county of Scott and state of Missouri, party of the first part, and W. W. Norman, of the county of Cape Girardeau and state of Missouri, party of the second part, witnesseth: That the said party of the first part, in consideration of the sum of thirteen hundred dollars to him paid by the said party of the second part, has this day sold unto the said party of the second part, does by these presents sell, assign, and transfer unto the said party of the second part, all timber, tram road, and right of way, on the following lands, to wit: The west half of section eighteen (18), the east half and the east half of the west half of section nineteen (19), and northwest quarter of the southwest quarter of section nineteen (19), and the east half and the east half of the west half of section thirty (30), and the east half and the southwest quarter of section thirty-one (31), all in township twenty-five (25), north of range twelve (12), in the county of Stoddard and state of Missouri, the said first party reserves the right to clear and fence lands in said section eighteen, and to deaden timber on all the above lands after August 1, 1902. The said first party also leases unto the said second party for the term of five years, free of rent, except the taxes, all of the southeast quarter of the southeast quarter of section twelve (12), in township twenty-five (25), range eleven (11), in said county and state, except two houses, which are used by tenants, cultivating lands at or near Hunter's switch, together with the privilege of renting the last named lands at a yearly rent of twenty-five dollars per year, after the expiration of this contract until mill is removed. This contract to end in five years after this date. This contract is subject to a former contract made with J. B. Livesay by S. B. Hunter, and assigned to Piatt B. D. G. Co.

"In testimony whereof, the said parties to these presents have hereunto, and also to copy thereof, set their respective hands at ___, on the day first above written.

                                          "Stephen B. Hunter
                                          "W. W. Norman."
                

We will, when necessary, refer to the testimony and other evidence in connection with the points to be considered.

1. In the foregoing contract, which is the first stone in the foundation of this case, the words "tram road" are used, and in the petition they are explained as the steel rails and ties and other material which the plaintiff seeks to recover as a part of the land itself. Its counsel, during the entire trial, persistently adhered to this description by the studied use of the word "tram" in every reference to the property included in the suit, as well as their oral and printed argument in this court. For this reason we think it appropriate, before proceeding to the more vital questions in controversy, to state our own impression with respect to the word "tram."

In State ex rel. Western Tile & Timber Co. v. Pulliam, 233 Mo. 229, 135 S. W. 443, the question before the court was the validity of the action of the board of equalization of Ripley county in listing for taxation against the relator, a manufacturer, "a tram railroad" operated in connection with its business as manufacturer in the year 1905. The case was certiorari against the board. In quashing the return this court said:

"We are unable to agree that a tram railroad, as designated and described, or, more accurately speaking, not described, is either a tool, a machine or an appliance of a manufacturing business. Reference to a dictionary will show that the term `tram railroad' has no settled, well-defined meaning, and is a term often applied to a street railroad carrying passengers. In some places it is commonly used as the equivalent for the term `street railroad.' It is also applied to a roadbed and cars for transporting coal and other freight."

The accuracy of this statement is shown by the historical fact that the first steam railroads in this country were called trams, and their construction is illustrated by one of the first important accidents which occurred on the track of the New York Central, in which the iron strap which faced the wooden track was detached and curled up, passing through the floor of the car and killing a distinguished European ambassador to this country. We do not think the word "tram" used in the description of this steel structure is more conclusive than the same word used in connection with the facts of the case from which we have quoted, and will accordingly consider it in connection with all the facts in this record.

Our difficulty in this respect has been greatly modified by the Legislature in giving express recognition to "tram railroads employed in the transportation of logs," by a provision relating to safety appliances in the equipment of their trains to meet a necessity arising from the nature of their traffic. Section 3170, R. S. 1909.

2. Being unable to find any equitable issue in the pleadings, which simply submit for our determination the legal ownership and right to possession of the property involved, we will consider the case from the standpoint of the finding of the circuit court, inquiring only whether it is supported, in its several particulars, by substantial evidence. We do this the more readily because the plaintiff, not only by its petition, but also by its general conduct of the trial, evidently endeavored to confine its case within the limits of their legal rights, and the defendant definitely accepted the issue so presented.

3. The contract of August 16, 1899, will first be considered with reference to the situation which...