Kansas City Southern Ry. Co. v. Sandlin

• Decision Date: 07 July 1913
• Citation: 158 S.W. 857
• Parties: KANSAS CITY SOUTHERN RY. CO. v. SANDLIN et al.
• Court: Missouri Court of Appeals

158 S.W. 857

KANSAS CITY SOUTHERN RY. CO. v. SANDLIN et al.

Springfield Court of Appeals. Missouri.

July 7, 1913.

1. RAILROADS (§ 69) — RIGHT OF WAY — ESTATE OR INTEREST ACQUIRED.

A railroad company by a conveyance to it of a strip of land 50 feet wide for a right of way for a railroad acquired only an easement and not the ownership of the fee.

2. TENANCY IN COMMON (§ 22) — RIGHTS OF TENANTS — MINES AND MINERALS.

The lessee of one tenant in common may not mine and take mineral ores from a tract of land against the will and without the consent of the other cotenant.

3. MINES AND MINERALS (§ 125) — WORKING — INJURY TO SURFACE — INJUNCTION.

Injunction is the proper remedy to enforce the right of the owner of a surface easement to have the surface supported and not endangered by mining thereunder.

4. INJUNCTION (§ 128) — ACTIONS — SUFFICIENCY OF EVIDENCE.

In a suit by a railroad company to enjoin a lessee of the owner in fee, who acquired his lease after the railroad was constructed and in operation, from mining under the right of way so as to interfere with the use thereof for a railroad right of way, the danger to the lives of passengers and employés involved required a relaxation of the rule that one asking for injunctive relief must make a clear and unquestioned case, and required that the injunction should be granted where the evidence reasonably showed the certainty that danger existed without a showing that a fatal disaster would certainly occur.

5. APPEAL AND ERROR (§ 1008) — REVIEW — QUESTIONS OF FACT.

A Court of Appeals will to some extent defer to the opinion and findings of the trial court who heard the evidence on a question of fact.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by the Kansas City Southern Railway Company against H. E. Sandlin and others. From a judgment granting a perpetual injunction, defendants appeal. Reversed and remanded, with directions.

C. V. Buckley, of Joplin, and Fred L. Williams, of Jefferson City, for appellants. Cyrus Crane, of Kansas City, J. W. McAntire, of Joplin, and O. L. Cravens, of Neosha, for respondent.

STURGIS, J.

The plaintiff owns and operates a railroad running south from Joplin, Mo. 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, Ft. Smith & 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, Ft. Smith & 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 track of land against the will and without the consent of the other cotenant. 17 Ency. of Law (2d Ed.) 673, 674; Zeigler v. Brenneman, 237 Ill. 15, 86 N. E. 597, 599; Moreland v. Strong, 115 Mich. 211, 73 N. W. 140, 69 Am. St. Rep. 553; 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, 7 Cush. (Mass.) 361, 368; St. Louis v. Laclede Gas-Light Co., 96 Mo. 197, 9 S. W. 581, 9 Am. St. Rep. 334; 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, 302, 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 not acquire the title in fee. Boyce v. Railroad, 168 Mo. 583, 68 S. W. 920, 58 L. R. A. 442; Railroad v. Clark, 121 Mo. 169, 25 S. W. 192, 906, 26 L. R. A. 751.

In Railroad v. Telephone Co., 134 Mo. App. 406, 411, 114 S. W. 586, 587, 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 purchased 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 construed to convey an easement...