Jordan v. Stallings

• Decision Date: 27 November 1995
• Docket Number: No. 19930,19930
• Citation: 911 S.W.2d 653
• Parties: Jerry JORDAN and Shirley Jordan, Plaintiffs-Respondents, v. John H. STALLINGS, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 653

911 S.W.2d 653

Jerry JORDAN and Shirley Jordan, Plaintiffs-Respondents, v. John H. STALLINGS, Jr., Defendant-Appellant.

No. 19930.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 27, 1995.

King E. Sidwell, Blanton, Rice, Sidwell & Ottinger, Sikeston, defendant-appellant.

James M. McClellan, Dempster, Barkett, McClellan & Edwards, Sikeston, plaintiffs-respondents.

GARRISON, Judge.

This is an appeal by John H. Stallings, Jr. (Defendant) from a $5000 judgment entered by the trial court on the petition of Jerry Jordan and his wife, Shirley (Plaintiffs). The court found that Defendant "did trespass on the property of the Plaintiffs and without Plaintiffs' consent removed dirt and soil from Plaintiffs' land thereby causing a permanent nuisance with run off water onto Plaintiffs' property constituting an unreasonable interference with the use and enjoyment of Plaintiffs' land." We affirm in part and reverse in part.

A part of the land involved in this suit was the subject of a deed for a 100-foot right of way to the Cairo and Fulton Railroad Company in 1857 and on which a railroad was later built. The right of way separated the properties of the parties, with Plaintiffs' being on the south and Defendant's on the north. A portion of the right of way was elevated and included ballast, consisting of rock or gravel, which formed the rail bed on which the ties and rails were laid.

The Union Pacific Railroad contracted with the Omaha Tie Yard for the removal of the ties, rails and ballast from the right of way. ¹ Omaha removed the rails and ties in late 1988 or early 1989, and then contracted with Frank Ferrell for the removal of the ballast, which he completed sometime during the first half of 1989. Mr. Ferrell testified that he removed only the ballast and left whatever dirt remained. Other testimony indicated that after the ballast was removed, a part of the right of way was elevated one to two feet above the surrounding ground. In 1991, the Missouri Pacific Railroad executed a disclaimer to the right of way. ²

Plaintiff Jerry Jordan testified that in August, 1989, he discovered a bulldozer, hired by Defendant, operating on what he described as his land, which apparently included parts of the south half of the right of way. Mr. Jordan testified that he spoke with Defendant, who was also present, and told him that one-half of the railroad right of way was his, and he would like to leave it the way it was. He said Defendant told him that he was going to move the dirt around to fill a low place on Defendant's side of the right of way. According to Mr. Jordan, however, the bulldozer leveled an area 18 inches high, 10 feet wide, and 800 feet long on his side of the right of way, without his permission.

The petition filed by Plaintiffs was in three counts. The first count alleged that Defendant rearranged the topography of the land so that the right of way no longer acted as a dam to prevent the flow of water from Defendant's property, and subsequently Plaintiffs were denied the right to enjoy their property because water flowed from Defendant's property onto theirs, causing significant damage to its value and quality. The second count alleged that Defendant had made an unreasonable, unusual and unnatural use of his property so as to substantially impair the rights of Plaintiffs to enjoy their property, thereby creating a permanent nuisance. Count Three alleged a trespass by Defendant when he entered Plaintiffs' land and bulldozed what was referred to as the dam.

On this appeal, Defendant contends that: Plaintiffs did not have an ownership interest in the right of way at the time of the acts complained of; the evidence was insufficient to support a judgment for trespass or nuisance; Defendant's conduct was not actionable under the reasonable use doctrine; Plaintiffs should not have been permitted to re-open their case and present additional testimony; and under the evidence, the judgment should have been for no more than $1000.

In a court-tried case such as this, the standard for appellate review is found in Rule 73.01(c). ³ As construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), it provides that the judgment is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Under this standard of review, considerable deference is accorded judgments based on evidentiary and factual evaluations by the trial court. Rouggly v. Whitman, 592 S.W.2d 516, 519 (Mo.App.E.D.1979).

Defendant's first point relied on is:

The trial court erred in finding that Mr. Stallings trespassed on the Jordans' property in that the Jordans did not have [sic] ownership interest in that tract of property at the time, and, even assuming otherwise, neither damages nor intentional interference with the Jordan's [sic] property was proven.

This point varies from the requirements of Rule 84.04(d), which provides that a point relied on shall state "wherein and why" the rulings of the trial court are claimed to be erroneous. These requirements are explained in Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978), as follows:

After stating the ruling the trial court actually made, it stands to reason that the point should then specify why the ruling was erroneous. This requirement essentially contemplates a statement which ordinarily will closely approximate what appellant believes should have been the trial court's conclusion of law on the point being addressed. After stating why the ruling was erroneous, the court then must be informed wherein the testimony or evidence gives rise to the ruling for which appellant contends.

The point in the instant case does not specify wherein the evidence gave rise to the conclusory statement that Plaintiffs did not have an ownership interest in the tract in question. We also note that Defendant is attempting to raise more than one issue in this single point, contrary to Thummel v. King, 570 S.W.2d at 688. In this instance, we have referred to the argument section of the brief in an effort to determine the import of the point, although we are not obliged to do so. Greene County Concerned Citizens v. Board of Zoning Adjustment, 873 S.W.2d 246, 255 (Mo.App.S.D.1994).

Defendant argues that Plaintiffs had no ownership possessory interests in the right of way when he is alleged to have trespassed in August, 1989. The basis of his argument is that the original deed to the railroad conveyed a fee simple title which it and its successors retained until the railroad formally disclaimed any interest in the right of way after the trespass allegedly occurred. The implication of his argument is that the right of way property was all that was affected by the alleged trespass, although this is not clear from the evidence. Mr. Jordan described the property on which the trespass occurred as "over on my land."

The deed to the railroad recited that the grantors, "being desirous for the construction of said Railroad as well [sic] in consideration of the premises as of the sum of five dollars ... by these presents do grant, bargain, sell, alien, remise, release, convey and confirm" to said railroad "by full covenant of warranty for the purpose of constructing, maintaining and operating thereon" a railroad and "for all uses and purposes connected with the construction, repair, maintenance and complete operation of said Railroad the Right of Way for the same over and through the following tract ... [describing a forty acre tract]." The deed also stated that "said Right of Way ... through the lands ... above described to include and comprise land of the width of fifty feet on each side of said Railroad ... together with all the tenements, hereditaments, profits, rights, privileges and appurtenances thereunto appertaining to have and to hold the same unto the said Cairo and Fulton Railroad Company of Missouri, their successors and assigns forever for all lawful uses and purposes incident to a full and indefeasible title in fee simple...." [Emphasis ours.] Finally, the deed provided that if the railroad or its successors or assigns shall "cease permanently to so occupy and use said Railroad ... and the said tracks shall be abandoned ..." then said lands would revert.

In Nigro v. Ashley, 690 S.W.2d 410, 417 (Mo.App.W.D.1984), the court held that to convey fee simple title to a railroad, the land must be conveyed for valuable consideration and "no limitation on the quantum of the interest conveyed may appear in the deed by which title is transferred." The expression or limitation of the use to which the property is to be put is a decisive factor in construing whether a fee or an easement was conveyed. Quinn v. St. Louis-San Francisco Ry. Co., 439 S.W.2d 533, 535 (Mo. banc 1969); G.M. Morris Boat Co. v. Bishop, 631 S.W.2d 84, 88 (Mo.App.S.D.1982).

Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 652 (1941), involved a deed which provided that the grantors "do hereby sell, convey ... the right of way for said Railroad feet in width" and it further stated "[t]o have and to hold the same for all the uses and purposes of said railroad company so long as the same shall be used for the construction, use and occupation of said railroad...." The court held that the deed conveyed only an easement because of the use of the words "right of way" and also the provision limiting the use of the land to railroad purposes. Id. The court said "[t]he law is settled in this state that where a railroad acquires a right of way whether by condemnation, by voluntary grant or by a conveyance in fee upon a valuable consideration the railroad takes but a mere easement over the land and not the fee." Id. ⁴

In State ex rel. State Highway Comm'n v. Griffith, 342 Mo. 229, 114 S.W.2d 976, 977 (1937), the deeds in question contained the words "[g]rant, bargain and sell, convey and confirm unto ... [a]s and for a right...