Kellogg v. Malin

• Decision Date: 31 August 1872
• Citation: 50 Mo. 496
• Parties: JOHN S. KELLOGG, Plaintiff in Error, v. JOSEPH MALIN, Defendant in Error.
• Court: Missouri Supreme Court

50 Mo. 496

JOHN S. KELLOGG, Plaintiff in Error,

v.JOSEPH MALIN, Defendant in Error.

Supreme Court of Missouri.

August Term, 1872.

Error to Buchanan Circuit Court.

H. K. White, for plaintiff in error.

I. The suit was correctly brought upon the covenant of seizin, and not upon the covenant against encumbrances. Not only does the demurrer admit the vesting of the fee simple in the Platte County Railroad, but a reference to the charter of the company will show that the power of condemnation of the fee was granted to the company, and that company was of unlimited duration. (Sess. Acts 1853, p. 355, §§ 1, 9.)

The Legislature, in exercising the right of eminent domain or in granting its exercise, has the right to take the fee simple as well as a less interest, and such fee is not a base fee or a conditional fee, nor would the fee revert to respondent or his grantees, upon abandonment by the company. (De Varaigne v. Fox, 2 Blatchf. 96-99; Heyward v. Mayor, etc., 7 N. Y. 314; Rexford v. Knight, 11 N. Y. 308; Nicoll v. N. Y. & Erie R.R. Co., 12 N. Y. 121; Beekman v. Saratoga R.R. Co., 3 Paige Ch. 46.)

II. The breach assigned is one for which an action will lie. The respondent, in effect, covenanted that the railroad company was a trespasser; and notice of its rights by open, notorious possession, or otherwise, will not avail defendant when sued upon his covenants. (Beach v. Miller, 51 Ill. 206; Barlow v. McKinley, 24 Iowa, 69; Vaughn v. Stuzaker, 16 Ind. 338; Harlow v. Thomas, 15 Pick. 66-69; Kellogg v. Ingersoll, 2 Mass. 97; Herrick v. Moore, 19 Me. 313; Peters v. Grubb, 21 Penn. 455; Russ v. Steele, 40 Verm. 310; Butler v. Gale, 27 Verm. 739; Hubbard v. Norton, 10 Conn. 431; Rawle Cov. 19, note.)

Doniphan & Vories, for defendant in error.

I. If any action would lie in this case, it should be an action upon the breach of the covenant against encumbrances. The condemnation of lands for railroad purposes, under our statute, although it may be said in some of the railroad charters that the company shall receive the land in fee, can only give the railroad company an easement on the land for the purpose of construction and use of the railroad. The ultimate fee in such case must remain in the owner of the remainder of the land. The railroad company can only take the strip of land for its road by the right of eminent domain. This must always be exercised for a public purpose. A citizen can only be deprived of his property by the State for a public purpose, and when the land in the case before us ceases to be used for a public purpose, it must, in the nature of things, be re-invested in the original owner. If this were not the case, the whole act of the Legislature authorizing the taking of lands would be unconstitutional and void. The taking of private property for private use is as much prohibited by the constitution as if it was so stated in terms. (Wells v. City of Weston, 22 Mo. 384; Taylor v. Porter, 4 Hill, N. Y., 144 et seq.) In condemning lands for railroad purposes (although the statute may say the land is to be taken in fee), the commissioners are bound to take into consideration, in deciding the price to be paid, the advantages as well as the disadvantages of the railroad to the land. (See R.R. Laws of Mo. 52, § 8.) In this way, if the commissioners should conclude that the railroad would be as much advantage to the owner as the value of the land taken, and give him nothing, and the court confirm the judgment of the commissioners, and thus pay the man for his land in advantage, and then the road be abandoned by the railroad company, and the lands be converted to uses detrimental to the interests of the owner of the land, what court could be found to uphold this artifice, by which a man is deprived of his land against his will, and for no consideration whatever, either real or imaginary? In the language of Judge Redfield, cited by plaintiff, “it sounds sufficiently absurd to startle the most desperate reformer.” But the charter of the company does not vest the land in fee. It is true the first section of the act authorizes the company to hold land in fee; but the eighth section, which authorizes the company to take land by the right of eminent domain, and against the will of the owner, only authorizes the right of way to be taken--nothing but the right of way being named in said section. Hence, in the nature of things, nothing could have been acquired by virtue of the decree of the Platte Circuit Court but the right of way, or an easement over the land; and if the decree attempted to do more than that, it was in that particular void.

II. The existence of a railroad or other public road, on lands conveyed with covenants of seizin, does not constitute a breach of the covenant. (Whitebeck v. Cook, 15 Johns. 488 et seq.; Washb. Easements, 68, 76; Jones v. Jenkins, 2 Law Reg., N. S., No. 1; Lampman v. Milks, 21 N. Y. 505; Peterson v. Arthurs, 9 Watts, 152.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought suit against defendant, upon his covenant of seizin contained in a deed conveying certain real estate situated in Platte county. The breach assigned was that at the time of the execution and delivery of the deed the defendant was not seized in fee simple of a strip of land 100 feet wide running through the tract conveyed, but that the fee in such strip was then vested in the Platte County Railroad, by virtue of a decree rendered in the Circuit Court previous to the execution and delivery of defendant's deed, of which the company, at all times since the delivery of the deed, had held exclusive possession.

To this petition the defendant demurred, and assigned as reasons therefor that the petition did not state facts sufficient to constitute a cause of action, because “the location and use of a railroad over said lands in the petition named was and is a public, notorious act or fact, of which plaintiff was bound to take notice, and of which he was presumed to have had full notice; and all such notorious physical facts were to be taken into consideration in construing the deed and warranty therein, and were not covered by said warranty and were not in law a breach thereof.”

The court sustained the demurrer and dismissed the petition, whereupon the plaintiff brought error.

The first question is whether the railroad, by its proceedings for condemnation which resulted in the decree of the court, became invested with a fee-simple title in the strip of land, or whether it acquired a mere easement. It is well settled that the covenant of seizin is not broken by the existence of easements or encumbrances which do not strike at the technical seizin of the purchaser. Therefore the existence of a highway over part of the land conveyed is no breach of this covenant, since it has been firmly and consistently established that, although the public may have the right of passage over the way, the freehold technically remains in the owner of the soil. (Rawle Cov., 3d ed., 51; Goodtitle v. Alker, 1 Burr. 133; Cortelyou v. Van Brundt, 2 Johns. 357; Jackson v. Hathaway, 15 Johns. 449; Lewis v. Jones, 1 Barr, 336; Peck v. Smith, 1 Conn. 103.)

By the first section of the act chartering the Platte County Railroad Company, power is given the company to take, hold, use and enjoy the fee simple or other title in and to any real estate. The eighth section provides that where the owner of the land through which such road shall run shall refuse to relinquish the right of way to the road, the facts shall be stated to the Circuit Court, and the judge shall appoint three disinterested citizens to view the land, who shall take into consideration the value of the land, and the advantages and disadvantages of the road to the same, and report what damages will be done to the land. And the ninth section declares that if no valid objection be made to the report, the court shall enter judgment in favor of the owner, against the company, for the amount of damages assessed, and shall make an order vesting in the company the fee-simple title to the land. (R.R. Laws of Mo. 51, 52.) It is true that in speaking of the title which the company acquire, the Legislature here uses the term “fee simple;” but did it contemplate a fee simple according to the technical legal meaning of that term?

That a fee simple may be taken and acquired through the exercise of the power of eminent domain may be conceded. But that, I apprehend, would be where an absolute and unconditional price was paid for the property. In determining the consideration to be paid by these roads for the right of way, the benefits and advantages accruing to the owner are taken into the calculation. The benefits and advantages, then, are considered as forming part of the purchase-money.

But suppose the road, after it is started, ceases to exist, and its operation is abandoned, will the land revert back to the owner, or may the road keep and dispose of it for a purpose entirely different from that had in view when it was commenced? It seems to me there...