Kansas City & S. E. Ry. Co. v. Kansas City & S. W. Ry. Co.

• Decision Date: 04 June 1895
• Court: Missouri Supreme Court
• Parties: KANSAS CITY & S. E. RY. CO. v. KANSAS CITY & S. W. RY. CO. et al.

31 S.W. 451

129 Mo. 62

KANSAS CITY & S. E. RY. CO. v. KANSAS CITY & S. W. RY. CO. et al.

Supreme Court of Missouri, Division No. 2.

June 4, 1895.

RAILROAD COMPANY — RIGHT OF WAY — ABANDONMENT — INJUNCTION TO RESTRAIN INTERFERENCE.

1. In a suit to enjoin interference with plaintiff railroad company's right of way, defendant cannot attack the capacity of plaintiff's corporate grantor to acquire a right of way and operate a railroad thereon.

2. Plaintiff's grantor, in 1873, surveyed and filed a profile line of a proposed railroad, obtained a conveyance of a right of way from the owner of land, and took possession, constructed its roadbed, and established its grade. In 1881 the work was renewed, and continued till the time of bringing suit. Plaintiff's right had never been questioned by the grantor of the right of way or by any subsequent owner of the land. Held, that plaintiff need not resort to condemnation proceedings before laying tracks upon such right of way.

3. When a railroad company has a clear title to a right of way, and is in such possession as the property is susceptible of prior to the laying of its tracks, equity has jurisdiction to restrain any person from interfering with plaintiff's right to lay its tracks over such right of way.

Appeal from circuit court, Jackson county.

Action by the Kansas City & Southeastern Railway Company against the Kansas City & Southwestern Railway Company and another for an injunction restraining defendants from disturbing plaintiff's possession of its right of way over certain land. From a decree of perpetual injunction, defendants appeal. Affirmed.

Elijah Robinson, for appellants. Johnson & Lucas, for respondent.

GANTT, P. J.

This is an appeal from a decree of perpetual injunction, granted by the circuit court of Jackson county, forever restraining the Kansas City & Southwestern Railway Company and the Missouri Pacific Railway Company, which operates said Southwestern Company, from disturbing the plaintiff, the Kansas City & Southeastern Railway Company, in its possession of its right of way over the N. W. ¼ of the N. W.¼ of section 22, township 48, range 33, in Jackson county, Mo. In 1873 the Kansas City, Memphis & Mobile Railroad Company surveyed and located its route to Osceola, in St. Clair county, Mo., and filed its profile map as required by section 2564, Rev. St. 1889, in the office of the clerk of the county court of Jackson county, and the several counties of Cass, Henry, and St. Clair. Said route was located over and upon a strip of land of 100 feet in width, of N. W. ¼ of N. W. ¼ of section 22, township 48, of range 33. On the 29th day of August, 1873, said railroad acquired from P. J. Kelley, the then owner of the fee of said land, the title to said premises by a deed of conveyance therefor. After securing said deed, the company constructed its roadbed thereon to its established grade. Subsequently, the said Kansas City, Memphis & Mobile Railroad was sold and conveyed to one Bancroft, who afterwards conveyed the same to one James I. Brooks, who conveyed to Kansas City & Southern Construction Company, which in turn conveyed to the Kansas City & Southern Railway Company, under whom, by deed of conveyance, plaintiff now holds. In 1881 the Kansas City & Southern Railway Company began the laying of the track, and completed 1¼ miles, and in 1882 again began the laying of the track, and has continuously been engaged therein from that time to the date the same was completed from Osceola to Kansas City, Mo. In 1884, the profile map of the old Kansas City, Memphis & Mobile Railway Company having been lost or stolen, the Kansas City & Southern Railway Company caused its road to be resurveyed, and filed in the office of the said clerk of county court of Jackson county a profile map, showing its location over the land in controversy. In 1886 track-laying was begun at a point near Westport, and the track of plaintiff's line of road extended to Waldo Park, and in 1887 and 1888 completed to a connection with the Kansas City & Southern, near Hart's Grove creek (except the crossing in question). In 1887, or early in 1888, the Kansas City & Southwestern Railway Company (organized June 5, 1886), under whom defendant claims, crossed the right of way of plaintiff on the grade as established by plaintiff and its grantors, and now asserts that plaintiff should not cross this land over which it laid its track on the grade established by plaintiff, without first having a condemnation action authorizing it so to do. The defendant claims under deed of date August 30, 1886, from one Dodson, who testified that he bought of one Ferdinand Arn; that he never claimed any right to the roadbed or right of way of the complainant; and that the defendant constructed its road across and on the grade of the complainant. This deed was the only claim of right on the part of the defendant. Soon after Kelley executed the deed to the plaintiff's grantor for the right of way, as above stated, he conveyed the said 40-acre tract of land to one Ferdinand Arn. The deed from Kelley to Arn excepted "the right of way heretofore conveyed to the Kansas City, Memphis & Mobile Railway Company." All the various steps leading up to the incorporation of the plaintiff road and its acquisition of the title of the Kansas City, Memphis & Mobile Railroad Company to the right of way in question were in evidence, and a mass of testimony as to the building of the road and the various lapses therein. The circuit court found for the plaintiff and enjoined defendants from further interference with its rights over said crossing.

1. The first contention of the defendants is that plaintiff had no title to the right of...