Masterson v. West End Narrowgauge R.R. Co.

• Decision Date: 02 January 1878
• Citation: 5 Mo.App. 64
• Parties: JOHN MASTERSON, Appellant, v. WEST END NARROWGAUGE RAILROAD COMPANY, Respondent.
• Court: Missouri Court of Appeals

5 Mo.App. 64

JOHN MASTERSON, Appellant,

v.WEST END NARROWGAUGE RAILROAD COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Jan. 2, 1878.

1. Constructive notice of an outstanding title in land is the notice imparted by the registry. Direct and positive knowledge, and that knowledge inferred from facts which should induce inquiry, differ not in kind, but only in the character of proof; both are actual notice. The conclusive presumption of notice which the law implies from certain facts has been called ““implied notice.” The question of actual notice is one for the jury.

2. The fact of notice cannot be arrived at as a direct inference from the bare fact of possession; but to charge the purchaser with actual notice there must be some evidence tending to show that at the time of his acquisition he had knowledge of such possession. One cannot be presumed to have actual notice because of a condition of things of which he knows nothing.

3. Where it is shown that grading had been commenced, but subsequently suspended, by a railroad company on a tract of land to which it had no record-title; and where the evidence as to the kind and quantity of grading was indefinite, and did not show that the grading indicated the purpose for which it was done: and where there was no evidence that the purchaser of the land knew of or suspected the existence of such grading; held, that there was no evidence to warrant a finding that the purchaser took with actual notice of the claim of the railroad to the land.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

LEVERETT BELL and W. B. THOMPSON, for appellant, cited: Merrity v. Railroad Co., 12 Barb. 605; Walker v. Railroad Co., 57 Mo. 275; Evans v. Railroad Co., 64 Mo. 453.

CHANDLER & YOUNG, for respondent: Possession being taken of ground for a railroad under a verbal permission from the owner makes the dedication complete.--Wag. Stat. 326, sec. 1. The right taken by the railroad in the land is an easement.-- Kellogg v. Molin, 50 Mo. 496. And may be given verbally.-- Seifert v. Withington, 63 Mo. 577. Possession being sufficient to consummate dedication, no notice is necessary, every one being presumed to have notice of a highway.-- Patterson v. Arthers, 9 Watts, 154. Where the original entry is legal, ejectment cannot be maintained.-- Hubbard v. Railroad Co., 63 Mo. 69; McAubey v. Railroad Co., 33 Vern. 311; Provolt v. Railroad Co., 57 Mo. 256. License to enter cannot be countermanded.-- Baker v. Railroad Co., 57 Mo. 272; Hosher v. Railroad Co., 60 Mo. 329.HAYDEN, J., delivered the opinion of the court.

This is an action of ejectment to recover a strip of land occupied, at the time the suit was brought, by the respondent as a road-bed for its railroad. Both parties claimed title under William T. Gay. The plaintiff read a deed of trust dated May 27, 1874, and recorded May 29, 1874, to himself from Gay, executed to secure a note for $29,000, payable in five years, and to secure ten semi-annual interest-notes. This deed included the land in dispute, and by sale under the power in it, the trustee's deed being dated June 8, 1875, and recorded the next day, the plaintiff acquired his title. The defendant's testimony tended to show that, in 1872, the St. Louis and Florissant Railroad Company, a corporation organized under the laws of Missouri, made surveys and located its road over the land in dispute, under oral permission from Gay; and that afterwards, and in 1873, Gay conveyed by deed the right of way to the railroad company. This deed was never recorded. On Sept. 19, 1874, Gay, by deed of that date, recorded on Sept. 24th, conveyed the right of way over these premises to the railroad company. No proceedings for condemnation were ever taken. For the purposes of this case, it may be assumed that the defendant succeeded to all the rights of the St. Louis and Florissant Railroad Company. The court below gave judgment for the defendant.

By the first section of chap. 66 of the General Statutes, it is provided that in case lands are sought to be appropriated by any railroad corporation, and such corporation and the owner cannot agree upon the compensation to be paid, proceedings for condemnation may be taken in the Circuit Court, etc. In chap. 63 of the General Statutes (Wag. Stat. 297, sec. 2), it is provided that every railroad corporation formed under that chapter shall have power to cause examination and survey for its proposed railroad to be made, etc., and for such purposes, by its agents, to enter upon the lands or waters of any person, etc., to lay out its road and to construct the same, etc. There is no provision providing for a preliminary filing of a map of the route as a public record; and, consequently, none to the effect that such selection of a route, when followed by the act of filing, shall impart notice, etc. The mere survey and location of a route, of which a mortgagee has no notice, cannot, apart from any evidence of possession furnished by the appearance of the premises, affect the rights of such mortgagee. To him, such survey and location are merely a thing of the air; and the authorities cited by the respondent in regard to finished roads, occupied and used, or projected roads, the maps of which have been filed under statutory provisions which make the filing impart notice, have obviously no application here. Wag. Stat. 303, sec. 12 (repealed by act of March 24, 1870); Id. 315, sec. 59; Id. 311, sec. 44.

The question here involved lies in a narrow compass. It is simply whether the plaintiff had such notice of the claim of the St. Louis and Florissant Railroad Company to this land as constitutes what the statute concerning conveyances terms actual notice. It is immaterial that the respondent claims merely a right of way; it claims possession, and its right of way involves possession, and the present action is for possession. The respondent claims, not by virtue of condemnation or any public proceedings, but by license or conveyance, or both, from Gay. There was, at the time the appellant lent his money and took his deed of trust, no record evidence of the claim of the railroad company, as the license of Gay was by parol, and as the deed of 1873 was not recorded. Thus the immediate question became one of fact,--whether the plaintiff purchased with actual notice. A confusion arises in the term “actual notice,” from the circumstance that this phrase is sometimes applied to denote positive knowledge of an outstanding equity, while constructive notice is employed to designate the circumstances which are sufficient to put a purchaser on his guard, and which should have induced inquiry. But, properly speaking, constructive notice, under our law, is the notice imparted by the registry, while actual notice is that described by the statute: “Sec. 26. No such instrument in writing shall be valid, except between the parties thereto, and such as shall have actual notice thereof, until the same shall be deposited with the recorder for record.” Wag. Stat. 277. The difference between the direct and positive knowledge of an outstanding title, and that knowledge which is inferred from facts which should induce inquiry, would seem, under the law that has grown up from our system of registry, to involve, not a difference in the kind of notice, but in the character of proof. The question of actual notice is a question for the jury. If the case shows that the purchaser, while treating for the property, receives notice of the outstanding title from the claimant, the evidence is direct; if there is merely a variety of circumstances from which the notice might reasonably be inferred, the evidence is indirect. But there may be a conclusive presumption of notice which the law by implication raises from certain facts, and this is called by Judge Leonard implied notice. Vaughn v. Tracy, 22 Mo. 415.

Here there was no direct evidence tending to show that the plaintiff had any notice of the claim of the railroad company to the land, or to any right of way over it. While the plaintiff's testimony “tended to show that he never had actual notice, nor actual knowledge, nor actual information, that a railroad had been surveyed or located, or in part, or in any manner, constructed upon the premises,” until May, 1875, the defendant's testimony tended to show that, in 1872, the company “surveyed and located its railroad upon the premises sued for, with...