Iven v. Winston Bros. Co.

• Citation: 48 S.W.2d 125
• Decision Date: 07 December 1931
• Docket Number: 17,325
• Parties: ANNA IVEN, ADMINISTRATRIX OF THE ESTATE OF GERHARD IVEN, DECEASED, RESPONDENT, v. WINSTON BROTHERS COMPANY, APPELLANT
• Court: Court of Appeals of Kansas

48 S.W.2d 125

ANNA IVEN, ADMINISTRATRIX OF THE ESTATE OF GERHARD IVEN, DECEASED, RESPONDENT, v. WINSTON BROTHERS COMPANY, APPELLANT

No. 17,325

Court of Appeals of Missouri, Kansas City

December 7, 1931

Appeal from Cole County Circuit Court.

Affirmed.

M. D Campbell, Commissioner. Boyer, C., concurs. All concur.

OPINION

Gerhard Iven brought suit to recover damages to his dwelling house alleged to have been caused by the blasting of rock by the defendant. The suit was brought against defendant Winston Brothers Company and the Missouri Pacific Railroad Company. Plaintiff had a verdict and judgment against both of the defendants. The court awarded the railroad company a new trial and the cause was dismissed as to it. Motion for new trial, filed by the defendant Winston Brothers Company, was overruled, and it brought the case here by appeal.

After the rendition of the judgment Gerhard Iven died, and the cause was revived in the name of his administratrix.

Defendant's answer is a general denial and a plea to the effect that the premises where the blasting was done was obtained by the Missouri Pacific Railroad Company from plaintiff and former owners by warranty deeds; that theretofore the railroad company had obtained a tract of land adjoining the tract purchased from plaintiff in April, 1926, and for many years thereafter operated a railroad over said tract; that in April, 1926, said railroad company "acquired from plaintiff by warranty deed" a tract of land adjoining the tract previously acquired by the railroad company that the tract so acquired from plaintiff is between the land owned prior thereto by said railroad company and the land now owned by plaintiff and is bounded on the south by land now owned by plaintiff and on the north by the tract previously acquired by said railroad company; that the tract so acquired from plaintiff is particularly described. (Description omitted.)

Continuing:

"Defendant further states that the plaintiff is estopped to maintain this suit against this defendant because by said warranty deed said Missouri Pacific Railroad Company was authorized to remove whatever material from said tract that was necessary for railroad purposes and that this defendant under contract with said Missouri Pacific Railroad Company blasted, excavated and removed only such rock and other material from said tract as was necessary for the purposes of said Missouri Pacific Railroad Company.

"Further answering, this defendant states that at the time of said conveyance it was contemplated that said Missouri Pacific Railroad Company would use said land for the purpose of taking therefrom such portion of the rock and dirt as might be necessary for use in constructing, reconstructing, maintaining, operating and widening the right of way of said Missouri Pacific Railroad Company".

It is further alleged that the said tract of land consists of the side of a hill that could not be made useful for railroad purposes except by removing therefrom such rock and dirt as was necessary for the construction, reconstruction, maintenance, operation or widening of the railroad right of way; that defendant excavated, blasted and removed said rock therefrom in the usual and ordinary method by the use of explosives, and "that the custom of removing rock by blasting and breaking into small parts has been so long continued that this custom must have been known to plaintiff and must have been in contemplation of the plaintiff at the time said tract of land was purchased from the plaintiff for the very high price of $ 400 per acre."

It is further alleged that defendant acted only under contract with the railroad company and did only such acts as the railroad company could have done had it done the work itself; that the railroad company had power to condemn land for railroad purposes; that the railroad company, by virtue of the warranty deed, acquired all rights to use said proprty for railroad purposes, "which it could have acquired under condemnation", and that under condemnation it would have acquired all rights to use said property for railroad purposes; that one railroad purpose for which said property could have been used under condemnation was the removal of rock, earth and other material for the purpose of widening its right of way.

Plaintiff filed motion to strike out all that part of the answer to which reference has been made except the general denial. The motion was sustained, and that ruling is assigned as error. The record does not disclose the theory upon which the court sustained the motion to strike.

Defendant contends that the railroad company, having obtained the land upon which the blasting was done by a warranty deed executed by Gerhard Iven, had the right, in the absence of negligence, to do the acts and things necessary to remove the rock.

Defendant sought by the plea to bring the case within the rule that a conveyance by a landowner of a right of way to a railroad company, though in form a warranty deed, conveys an easment and not a title. Chouteau v. Missouri P. R. Co., 30 S.W. 299, 122 Mo. 375, 386.

Defendant also contends that a railroad company upon obtaining right of way over a tract of land by condemnation or by voluntary conveyance, may construct its road thereon, and in the absence of negligence is not liable for resulting injury to the remainder of the tract because such injury "is a matter to be considered by the commissioners or jury in assessing the landowner's damages in a condemnation proceeding, or by the owner himself when he negotiates a sale of the right of way". Harrelson v. Kansas City & A. R. Co., 52 S.W. 368, 151 Mo. 482, 497.

It is apparent that under the rules announced in the cases presently to be cited, the...