Kanaga v. St. Louis, Lawrence & Western R.R. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHENRY
Citation76 Mo. 207
Decision Date31 October 1882
PartiesKANAGA v. THE ST. LOUIS, LAWRENCE & WESTERN RAILROAD COMPANY, et al., Appellants.

76 Mo. 207

KANAGA
v.
THE ST. LOUIS, LAWRENCE & WESTERN RAILROAD COMPANY, et al., Appellants.

Supreme Court of Missouri.

October Term, 1882.


[76 Mo. 208]

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Lathrop & Smith for appellants.

The plaintiff husband, being thus entitled to the possession, ( Bryan v. Wear, 4 Mo. 112,) was the only proper party to bring ejectment. Beal v. Harmon, 38 Mo. 438; Allen v. Ranson, 44 Mo. 263; Tyler on Ejectment, 168; Jackson v. McConnell, 9 Wend. 175; Jackson v. Leek, 19 Wend. 339; Chambers v. Handley, 3 J. J. Marsh. 98; Bledsoe v. Simms, 53 Mo. 305, 308; Wilson v. Garaghty, 70 Mo. 517. As he was the only proper party plaintiff, if he lay by and encouraged or permitted the company to enter upon and construct its railroad over the land in controversy, he is estopped. Provolt v. R. R. Co., 57 Mo. 256; Baker v. R. R. Co., 57 Mo. 265; Hubbard v. R. R. Co., 63 Mo. 68. The company having entered and constructed its road over the land by the license and acquiescence of plaintiffs, Morrison is entitled to all the rights of said company by reason of his purchase. The license having been acted upon by the company, and money expended and improvements made on the faith thereof, became coupled with an interest and irrevocable, and is assignable by act of the parties, and undoubtedly, as in this case, by operation of law. Pierson v. Canal Co., 2 Disney 100; Cook v. Pridgen, 45 Ga. 331; Russell v. Hubbard, 59 Ill. 335; Hodgson v. Jeffries, 52 Ind. 334; Thompson v. McElarney, 82 Pa. St. 174; 2 Am. Leading

[76 Mo. 209]

Cases, (5 Ed.) 568; 2 Smith Leading Cases, (6 Am. Ed.) 761; Baker v. R. R. Co., 57 Mo. 273; Jackson v. Corliss, 7 John. 531; Jackson v. Kip, 3 Wend. 230.

Boggess, Cravens & Moore for respondents.

A right of way is an easement, and an easement being a liberty, privilege or advantage in land, a claim for it must be founded upon a deed or writing, or upon presumption which supposes one. Angel on Watercourses, § 285; Sugden on Vend. and Purch., (8 Am. Ed.) 177, note 1. A parol license is insufficient. Washburn on Easements, ch. 1, § 2. A deed is necessary. Fuhr v. Dean, 26 Mo. 120; Desloge v. Pearce, 38 Mo. 588. A license is founded in personal confidence and is not assignable. Angel on Watercourses, § 285; 3 Kent Com., *452 and note 2. There is an important distinction to be observed between an easement and a license. An easement always implies an interest in the land in or over which it is enjoyed. A license carries no such interest. The interest of an easement may be a freehold or a chattel one, according to its duration, whereas, whatever right one has in another's land by license, may, as a general proposition, be said to be revocable at will by the owner of the land in which it is enjoyed. Washburn on Easm., ch 1, § 1. All unexecuted licenses are revocable at the will of the licensor. Wiggins Ferry Co. v. Nat. Stock Yards, 102 Ill. 514; s. c., 13 C. L. N. 378. All licenses to do any act on the lands of the licensee, though detrimental to the licensor, are when executed irrevocable. But this is not the case now presented for consideration. All licenses to do any act on the lands of the licensor, though executed, and money has been expended upon the faith of the license, are revocable at the will of the licensor. 3 Kent's Com., 452, note 2; Sugden on Vend. and Purch., (8 Am. Ed.) 198, note 1; Angel on Waterc., §§ 293, 294, and notes; Washburn on Easm., p. 24; 26 Mo. 116; 38 Mo. 588; 1 Redfield on Railways, 284.

[76 Mo. 210]

Provolt v. R. R. Co., 57 Mo. 256, when construed in the light of the statute concerning condemnations of right of way, is wholly divested of the character of a case resting upon license. Before entering on the plaintiff's lot, the company proceeded under the statute to condemn the right of way, the commissioners had reported, and the company had deposited the amount with the clerk. The plaintiff excepted, but the company went on, took possession and constructed the road. Sections 1, 3 and 4, Wagner's Statutes, page 327, regulate these proceedings, and provide that upon payment of the amount assessed by the commissioners to the clerk, the company may proceed to take possession and construct its road notwithstanding the owner may except, “and any subsequent proceedings shall only affect the amount of compensation.” In Baker v. R. R. Co., 57 Mo. 265, the entry by the company was made under a grant, and the decision was based upon the grant, and not upon license. p. 273. Mrs. Kanaga being a married woman could not impose a servitude on the land. Washburn on Easm., p. 39; Wannell v. Kem, 57 Mo. 478; Shroyer v. Nickell, 55 Mo. 264. Her husband could not bind the land except by deed in which she joined. Wannell v. Kem, 51 Mo. 150; s. c., 57 Mo. 478; Clark v. Rynex, 53 Mo. 380, 382; Bartlett v. O'Donoghue, 72 Mo. 563; Eystra v. Capelle, 61 Mo. 578; Silvey v. Summer, 61 Mo. 255; McBeth v. Trabue, 69 Mo. 642.


HENRY, J.

This is an action of ejectment instituted in the circuit court of Cass county by plaintiffs, who are...

To continue reading

Request your trial
20 practice notes
  • Gray v.St. Louis & San Francisco Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1883
    ...right to maintain an action of ejectment. Provolt v. Railroad Co., 57 Mo. 256; Hubbard v. Railroad Co., 63 Mo. 68; Kanaga v. Railroad Co., 76 Mo. 207. The order dismissing the condemnation proceedings is void, and the case is yet pending and undisposed of. Proceedings to condemn right of wa......
  • Brusha v. Bd. of Educ. of Okla. City, Case Number: 2561
    • United States
    • Supreme Court of Oklahoma
    • April 4, 1913
    ...sums of money in the construction of a railroad through his land, without objection, forfeits his right of ejectment. Kanaga v. Railroad, 76 Mo. 207; Provolt v. Railroad, 57 Mo. 256; Masterson v. Railroad, 72 Mo. 343; [Reichert v. St. L. & S. F. R. Co., 51 Ark. 491, 11 S.W. 696] 5 L. R. A. ......
  • Idalia Realty & D. Co. v. Norman's Southeastern Ry. Co, No. 19200.
    • United States
    • United States State Supreme Court of Missouri
    • March 2, 1920
    ...blow at that place has long been a subject of adjudication in this court. Provolt v. Railroad, 57 Mo. loc. cit. 262; Kanaga v. Railroad, 76 Mo. 207; Gray v. Railway, 81 Mo. 126; Hubbard v. Railroad, 63 Mo. 68; Baker v. Railroad, 57 Mo. 265; Improvement Co. v. Railroad, 255 Mo. 519, 164 S. W......
  • Flesh v. Lindsay
    • United States
    • United States State Supreme Court of Missouri
    • March 14, 1893
    ...that his wife is not a necessary party plaintiff with him. Bledsoe v. Simms, 53 Mo. 305; Cooper v. Ord, 60 Mo. 420; Kanaga v. Railroad Co., 76 Mo. 207; Dyer v. Wittler, 89 Mo. 81, 14 S. W. Rep. 518; Peck v. Lockridge, 97 Mo. 549, 11 S. W. Rep. 246. It necessarily follows from these decision......
  • Request a trial to view additional results
20 cases
  • Gray v.St. Louis & San Francisco Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1883
    ...right to maintain an action of ejectment. Provolt v. Railroad Co., 57 Mo. 256; Hubbard v. Railroad Co., 63 Mo. 68; Kanaga v. Railroad Co., 76 Mo. 207. The order dismissing the condemnation proceedings is void, and the case is yet pending and undisposed of. Proceedings to condemn right of wa......
  • Brusha v. Bd. of Educ. of Okla. City, Case Number: 2561
    • United States
    • Supreme Court of Oklahoma
    • April 4, 1913
    ...sums of money in the construction of a railroad through his land, without objection, forfeits his right of ejectment. Kanaga v. Railroad, 76 Mo. 207; Provolt v. Railroad, 57 Mo. 256; Masterson v. Railroad, 72 Mo. 343; [Reichert v. St. L. & S. F. R. Co., 51 Ark. 491, 11 S.W. 696] 5 L. R. A. ......
  • Idalia Realty & D. Co. v. Norman's Southeastern Ry. Co, No. 19200.
    • United States
    • United States State Supreme Court of Missouri
    • March 2, 1920
    ...blow at that place has long been a subject of adjudication in this court. Provolt v. Railroad, 57 Mo. loc. cit. 262; Kanaga v. Railroad, 76 Mo. 207; Gray v. Railway, 81 Mo. 126; Hubbard v. Railroad, 63 Mo. 68; Baker v. Railroad, 57 Mo. 265; Improvement Co. v. Railroad, 255 Mo. 519, 164 S. W......
  • Flesh v. Lindsay
    • United States
    • United States State Supreme Court of Missouri
    • March 14, 1893
    ...that his wife is not a necessary party plaintiff with him. Bledsoe v. Simms, 53 Mo. 305; Cooper v. Ord, 60 Mo. 420; Kanaga v. Railroad Co., 76 Mo. 207; Dyer v. Wittler, 89 Mo. 81, 14 S. W. Rep. 518; Peck v. Lockridge, 97 Mo. 549, 11 S. W. Rep. 246. It necessarily follows from these decision......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT