Kansas City Southern Railway Company v. Sandlin

• Citation: 158 S.W. 857,173 Mo.App. 384
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY, Respondent, v. H. E. SANDLIN et al., Appellants
• Decision Date: 28 July 1913
• Court: Court of Appeal of Missouri (US)

158 S.W. 857

173 Mo.App. 384

KANSAS CITY SOUTHERN RAILWAY COMPANY, Respondent, v. H. E. SANDLIN et al., Appellants

Court of Appeals of Missouri, Springfield

July 28, 1913

Appeal from Jasper County Circuit Court, Division No. One.--Hon Jos. D. Perkins, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

C. V Buckley and Fred L. Williams for appellants.

(1) Respondent's title is an easement or right way. It has no interest in the mineral. 33 Cyc. 167; Gas Co., 162 Ind. 393 68 N.E. 1020; Raleigh, etc., v. Sturgeon, 120 N.C. 225, 26 S.E. 779; East Tenn. v. Telford, 89 Tenn. 293, 14 S.W. 776; Boyce v. Railroad, 168 Mo. 583; Delaney v. Mo. Railroad, 168 Mo. 599; Chouteau v. Railroad, 122 Mo. 375; Baker v. Railroad, 122 Mo. 396; Kellogg v. Malin, 50 Mo. 496; Jones v. Van Boshove, 61 N.W. 342; Hill v. Railroad, 32 Vt. 74; Railroad v. McWilliams, 32 N.W. 315; Walker v. Railroad, 74 N.E. 812; Smith v. Hall, 72 N.W. 472; Sheppard v. Railroad, 53 S.E. 137. (2) A railroad company has an easement only in its right of way and not the fee simple title whether it acquires the same (that is, its right of way) by deed or condemnation. State ex rel, v. Road Co., 207 Mo. 103; Railroad v. Clark, 121 Mo. 169; Kelley v. Malin, 50 Mo. 496; St. Louis v. Tel. Co., 134 Mo.App. 406-417; Sec. 2443, R. S. 1889; 2 Elliott on Railroads, sec. 415; Vermilya v. Railroad, 24 Iowa 234. (3) There was no such danger proven or threatened to plaintiff's road as authorized an injunction in this case. Davis v. Hartwig, 195 Mo. 398; Carolina v. Wolff, 154 Mo. Ch. 545; Lester R. E. Co. v. St. Louis, 169 Mo. Ch. 234; 1 High on Inj., sec. 886; Business M. L. v. Waddill, 143 Mo. Ch. 499. (4) The plaintiff must establish by the greater weight of evidence the grounds alleged in his petition in order to get the relief sought.

Cyrus Crane, J. W. McAntire and O. L. Cravens for respondent.

(1) Plaintiff has the absolute right to have the surface of its strips of land protected and supported precisely as it was in their natural state, even if plaintiff be in the enjoyment only of a mere easement; and injunction may be resorted to to protect this right. Railroad v. Brandau, 81 Mo.App. 1; Railroad v. Yankee, 140 Mo.App. 274; Railroad v. Mining Co., 138 Mo.App. 129; Metropolitan Co. v. Manning, 98 Mo.App. 248, Sec. 2534, R. S. 1909. (2) Mining under public highways is a criminal offense. Secs. 8428, 8429, R. S. 1909. (3) The State and not these defendants is the only power that can raise the question as to whether the railroad abused its power in attempting to acquire a title in fee simple for its right of way when the law only gave it the right to take an easement. Hovelman v. Railroad, 79 Mo. 632; Hill v. Rich Hill Co., 119 Mo. 9; Land Co. v. Coffman, 50 Mo. 254; Chambers v. St. Louis, 29 Mo. 543; Railroad v. Seely, 45 Mo. 216; Chenoweth v. Express, 95 Mo.App. 195; Kansas City v. Surety Co., 196 Mo. 302; Summet v. Realty Co., 208 Mo. 501; Bridge Co. v. Stone, 174 Mo. 1; Railroad v. Ordelheide, 172 Mo. 436. (4) The use of the words "grant, bargain and sell" in the Colgate deed makes it a warranty deed. Sec. 2793, R. S. 1909. (5) One tenant in common cannot dedicate, lease or sell the common property without the consent of his cotenants so as to affect the rights of the latter. St. Louis v. Gas Light Co., 96 Mo. 197; McBeth v. Trabue, 69 Mo. 642; Martin v. Castle, 193 Mo. 183; Paving Co. v. McManus, 144 Mo.App. 610. (6) It seems to be the universal rule that a lease by one tenant in common of the entire estate is void as to his cotenants, although binding upon himself. Mooreland v. Strong, 115 Mich. 211, 73 N.W. 140; Lee v. Livingston, 143 Mich. 203, 106 N.W. 713; Jackson v. O'Rorke, 71 Neb. 418, 98 N.W. 1068; Walker v. Marion, 143 Mich. 27, 106 N.W. 400; Harlon v. Phosphate Co., 62 S.W. 614; Adams v. Iron Co., 61 Mass. 361; Martens v. O'Connor, 101 Wis. 18, 76 N.W. 774. (7) Plaintiff is entitled to its injunction on the ground alone that the attempted lease and mining by defendants is void as against plaintiff. Tippin v. Robbin, 71 Wis. 507, 37 N.W. 427; Tippin v. Robbin, 64 Wis. 546, 25 N.W. 713.

OPINION

STURGIS, J.

The plaintiff owns and operates a railroad running south from Joplin, Missouri. The defendants claim to have and were exercising the right to mine for lead and zinc ores under the plaintiff's right of way, their right to do so being based on a mining lease to them from the owner of the land through which the railroad runs. By this action the plaintiff seeks to restrain defendants from so doing. The trial court granted a perpetual injunction, from which the defendants have appealed.

One of the grounds on which plaintiff seeks to uphold the judgment of the trial court is that plaintiff is the owner in fee of an undivided half of its right of way through the land in question, and is a tenant in common with defendants' lessor; that defendants' lease, being made by one tenant in common only, is void as to the other cotenant, this plaintiff, and that defendants cannot mine the land by virtue of this lease without its consent. Without going into the details of the title, it is sufficient to say that plaintiff bases its claim to own an undivided one-half of the land used as a right of way in fee on the following duly executed and acknowledged deed: "For the consideration of one dollar to us paid by the Kansas City, Fort Smith and Southern Railway Company, the receipt of which is hereby acknowledged, we the undersigned Romulus R. Colgate and Susan P. Colgate, his wife of the city and State of New York do by these presents grant, bargain and sell and convey unto the said Kansas City, Fort Smith and Southern Railway Company, its successors and assigns forever, a strip of ground fifty (50) feet in width for right of way of said railroad, over and across the following described tract of land, to-wit:

"The southwest quarter of section number eighteen (18) in township number twenty-seven (27) north of range number thirty-two (32) west. The said grantors own an undivided one-half interest in said land situate in Jasper county, in the State of Missouri, said strip being in a generally northwesterly direction and being twenty-five (25) feet wide on either side of the center line of said railroad as laid out and located and now being constructed.

"In witness whereof, we have hereunto set our hands and affixed our seals this 17th. day of June, 1889.

"R. R. Colgate (seal)

"S. P. Colgate (seal)."

For the purposes of this case the only question to be determined is whether this deed conveys a fee to the grantee or only an easement. It is asserted by defendants that the predecessor of plaintiff acquired by this deed and that plaintiff now has no more than an easement over this land, and consequently has no right or power to prohibit mining from being done beneath the surface unless such mining interferes with or endangers the use of said strip of land for running trains over the same, or for other proper and legitimate railroad purposes. It is hardly questioned but that if plaintiff is the owner in fee of an undivided one-half of said strip of land, then defendants' lease from the other tenant in common, though valid as between the parties thereto, is void as to this plaintiff. The lessee of one tenant in common has no right to mine and take mineral ores from a tract of land against the will and without the consent of the other cotenant. [17 Ency. of Law (2 Ed.), 673-4; Zeigler v. Brenneman, 237 Ill. 15, 86 N.E. 597, 599; Moreland v. Strong, 115 Mich. 211, 73 N.W. 140; Jackson v. O'Rorke, 71 Neb. 418, 98 N.W. 1068; Martens v. O'Connor, 101 Wis. 18, 76 N.W. 774; Adam v. Briggs Iron Company, 61 Mass. 361, 368; St. Louis v. Laclede Gas Light Co., 96 Mo. 197, 9 S.W. 581; McBeth v. Trabue, 69 Mo. 642.]

It is contended by plaintiff that under the laws and court decisions of this State the plaintiff did by this deed acquire an undivided one-half of this land in fee. In Childs v. Railroad, 117 Mo. 414, 23 S.W. 373, where the railroad claimed title in fee under an ordinary deed to a one-half interest in land, the court held that the railroad and the owner of the other one-half interest were tenants in common, and the one tenant in common could not remove rock and other materials from the land without paying his cotenant a proportional share therefor. In Baker v. Railroad, 122 Mo. 396, 399, 30 S.W. 301, the court said: "The owner of the land, whoever he is, represents the fee, and compensation to him appropriates the entire fee, and he is the only one to be looked to, when the right of way is to be acquired, whether by condemnation or otherwise. There is, and there can be, no difference in this regard between dedication and condemnation." This last expression of the court is important because plaintiff concedes that in case of condemnation of the land for a railroad right of way, the railroad only obtains an easement in the land and does nor acquire the title in fee. [Boyce v. Railroad, 168 Mo. 583, 68 S.W. 920; Railroad v. Clark, 121 Mo. 169, 25 S.W. 192, 906.]

In Railroad v. Telephone Co., 134 Mo.App. 406, 411, 114 S.W. 586, the court said: "In Missouri, the estate of a railroad company in lands acquired for railroad purposes, right of way, etc., amounts to an easement only. The fee to the lands thus occupied continues to reside in the adjacent landowners. Our constitutional provision to that effect has been frequently so expounded by the courts. "

The Supreme Court, by a majority opinion, in Chouteau v Railroad, 122 Mo. 375, 385, 22 S.W. 458, 30 S.W. 299, held that, although a railroad company purchase land used for its right of way, depot purposes, etc., and took an ordinary deed purporting to convey the same in fee, yet, such a conveyance would be...