Lambert v. St. Louis & Gulf Railway Company

• Decision Date: 06 June 1908
• Citation: 111 S.W. 550,212 Mo. 692
• Parties: W. C. LAMBERT v. ST. LOUIS & GULF RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

111 S.W. 550

212 Mo. 692

W. C. LAMBERT v. ST. LOUIS & GULF RAILWAY COMPANY, Appellant

Supreme Court of Missouri

June 6, 1908

Appeal from Scott Circuit Court. -- Hon. Henry C. Riley, Judge.

Reversed and remanded (with directions).

L. F Parker, Moses Whybark and W. F. Evans for appellant.

(1) Even though conceding for the purpose of this case that the defendant was guilty of wrongfully invading plaintiff's possession of the land described in the petition, yet injunction was not his remedy. The damages were not irreparable, nor the defendant insolvent, and the plaintiff had an adequate remedy at law. Sills v. Goodyear, 80 Mo.App. 132; Echelkamp v. Schrader, 45 Mo. 505; 3 Pom. Eq. (2 Ed.), secs. 1347, 1350; Railroad v. Dey, 1 L. R. A. 744. (2) Crowder, who represented the railroad company in the purchase of the land from plaintiff, was dead and the court erred in permitting the plaintiff to testify as to any transaction had with him. Williams v Edwards, 94 Mo. 447; Banking House v. Rood, 132 Mo. 256; Real Estate Co. v. Building Co., 196 Mo. 358. (3) That Crowder bought the land from plaintiff for the railroad company, and paid him for it, and the railroad company then entered into possession and exclusively used it for a depot and yard purposes at the station of Benton, and it was so used until this controversy came up, is clearly established by the testimony of Anderson, Houck, L. B. Houck, Heisserer, Hunter, Hawkins and Brooks; and the grain warehouses were then erected. This was sufficient to take the contract out of the Statute of Frauds, and vest complete equitable title in the defendant for the purpose for which it bought the land. Young v. Montgomery, 28 Mo. 604; Price v. Hart, 29 Mo. 171; Underwood v. Underwood, 48 Mo. 527; Bean v. Valle, 2 Mo. 126; Townsend v. Vanderwerker, 160 U.S. 171; Roberts v. Templeton, 3 L. R. A. 790. (4) The possession by the railroad company was for depot and yard purposes, and the land was held by it for those purposes in the usual manner, and with the knowledge and consent of the plaintiff. This possession was sufficient. Keen v. Schweigler, 70 Mo.App. 409; Draper v. Shoot, 25 Mo. 203; Pacific Exp. Co. v. Tyler Office Fixture Co., 72 Mo.App. 151. (5) The grain warehouses possessed by the plaintiff had been built on the land by Crenshaw and Anderson by permission of the railroad company, and not by permission of the plaintiff. They held by verbal lease from the railroad company as its tenants, and plaintiff obtained possession of these warehouses by purchase from Crenshaw and Heisserer, who bought from Anderson, and he, plaintiff, held under the railroad company, and by his purchase recognized it as his landlord, and became its tenant. He, therefore, cannot dispute the title of the railroad company without first restoring to it the possession. Stewart v. Miles, 166 Mo. 181.

Marshall Arnold and Frank Kelly for respondent.

(1) Injunction is the remedy. Damschoeder v. Thias, 51 Mo. 100; Coal Company v. St. Louis, 130 Mo. 323. Though a trespasser be solvent, yet when his trespassings are harassing, continuous, and involve a multiplicity of suits, injunction will lie. Land Company v. Manning, 98 Mo.App. 248; Palmer v. Crisle, 92 Mo.App. 510. (2) That respondent was not competent to testify as to the terms of the contract made with Crowder, who was dead at the time of the trial, is conceded, and we insist he did not do so. He did have the right to contradict the living, and we submit that is all he did. (3) Where an agreement for the sale of real estate is required by the Statute of Frauds to be witnessed by a writing, or memorandum, the writing must contain the whole agreement. Rucker v. Harrington, 52 Mo.App. 481; Miller v. Goodrich Bros. Bank, 53 Mo.App. 433; Weil v. Willard, 55 Mo.App. 376; Ringer v. Holtzclaw, 112 Mo. 519. Why, then, enforce an oral contract for the sale of lands, as insisted on by appellant, when no part of its terms or conditions are shown? And especially, as in this case, the possession by the alleged purchasers was doubtful in the extreme, and no improvements made except what has been bought and paid for by respondent? The so-called possession of appellant does not meet the requirements set forth in Charpiot v. Sigerson, 25 Mo. 63. The courts have many times defined the character of evidence and the degree of proof for sale of real estate required to take a case out of the Statute of Frauds. In the first case cited by appellant, Young v. Montgomery, 28 Mo. 604, the court said: "The circumstances of the particular case must be fully disclosed in order," etc. The case at bar does not meet that condition. In Underwood v. Underwood, 48 Mo. 530, cited by appellant, the court says: "But it is not only indispensable that the acts done should be clear and definite and referable exclusively to the contract, but the contract should also be established by competent proof, and be clear, definite, and unequivocal in all its terms." The rule and reasons therefor are given in Berry v. Hartzell, 91 Mo. 137, which case is quoted and approved in Brownlow v. Fenwick, 103 Mo. 427; Hubbard v. Hubbard, 140 Mo. 300; Alexander v. Alexander, 150 Mo. 579; Gibbs v. Whitewell, 164 Mo. 387. In all the cases on this point it is held the evidence must be clear and convincing as to the existence and character of the contract. McKee v. Higbee, 180 Mo. 263; Sitton v. Shipp, 65 Mo. 297. (4) Under the fourth point in appellant's brief he speaks of the "possession" by the railroad. This so-called "possession" was the possession of the people in general passing to and fro over the unfenced land of respondent in shipping and receiving freight from the road, and the building of the warehouses part on the land in dispute and part on the right of way. And now because the respondent did not stand around the grounds and order the people off of it, or advise every one who came upon it that it was "his" land, appellant attempts to construe his failure to into a possession of the road with the knowledge and consent of respondent. We do not believe we have reached that condition of affairs where one owning a piece of land lying in a public place and liable to be walked upon by passers-by must, to be assured of his title, get out and blow a trumpet and solemnly warn everybody that the land is his, or have it taken away from him. That possession is not such as the law demands in cases of this kind. Charpiot v. Sigerson, 25 Mo. 63; Emel v. Hayes, 102 Mo. 186; Eaton on Equity, sec. 275, p. 555. Courts will refuse a decree of specific performance unless the purchaser has taken possession and made valuable improvements on the faith of it. Eaton on Equity (Horn Book Series), p. 31; Taylor v. Van Schrader, 107 Mo. 206. The trial court heard the witnesses, and more than that knew them personally, had heard many of them testify before, knew all the interests and relations they bore to the case, sat as a jury and tried the issues and the court found that the respondent is the "owner of and in the possession of" the piece of ground in dispute. The possession as an issue of fact was found by the trial court against the appellant, and the appellate court will not disturb the finding. James v. Insurance Co., 148 Mo. 1; Banking Co. v. Brown, 165 Mo. 37; Golden v. Tyer, 180 Mo. 204; Mathewson v. Kilburn, 183 Mo. 118.

LAMM, J. Gantt, C. J., Fox, Graves and Woodson, JJ., concur; Burgess, J., concurs in the result; Valliant, J., dissents in a separate opinion.

OPINION

In Banc.

LAMM J.

From a decree in the Scott Circuit Court, finding that plaintiff owns and is in lawful possession of a triangular bit of land in Scott county, and has on this land two warehouses in which he stores grain, six corn pens holding three thousand bushels of corn, and fences enclosing and protecting the warehouses and pens, and that defendant has repeatedly entered the premises tearing down said fences when re-erected and threatens to continue such trespass in the future, and which decree makes perpetual a temporary injunction against defendant, its agents, servants and employees, enjoining them from tearing down plaintiff's said fences or in any way interfering with his free and uninterrupted use of the premises, defendant on due steps appeals to this court.

The case was assigned to Division One and came into Banc because a majority of that division was unable to concur in the opinion of our learned brother Valliant, affirming the judgment, nisi. In Banc on re-argument six of his brethren were of opinion the judgment should be reversed and remanded with directions. Hence the case was reassigned for a principal opinion, and the divisional opinion of our learned brother Valliant will appear as a dissenting one. In our brother's opinion a map appears -- a part of the record of the case -- of value in getting at an understanding of the locus and its environment.

The case (in small compass) is this:

Defendant is a railroad corporation owning and operating a line of railroad through Scott county running near the town of Benton. This railroad was built in 1893 by Houck's Missouri & Arkansas Railroad Co. Defendant, its successor by purchase, holds under a deed from the building company, not only conveying the line of road, but "all the rights of way, terminals, station grounds stations, shops, roundhouses, sidings, switches and YY's, municipal and other franchises, and all lands, tenements, rights and privileges, etc., now owned or hereafter acquired in and about the construction and operation of the railroad aforesaid." The bit of land in dispute will hereinafter be called "the triangle." The building of the road cut off this triangle (an acre or so) from the main body of plaintiff's farm. Thereupon he moved his fences away and the triangle lay out as...