Maupin v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 24 December 1902
• Citation: 71 S.W. 334,171 Mo. 187
• Parties: MAUPIN v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Supreme Court

71 S.W. 334

171 Mo. 187

MAUPIN v. CHICAGO, R. I. & P. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 24, 1902.

EJECTMENT — EASEMENTS — PAROL GRANT — REVOCATION — STATUTE OF FRAUDS — PERFORMANCE OF CONSIDERATION—EQUITABLE DEFENSES.

1. Plaintiff, with several other owners of lots abutting on an alley, solicited defendant railroad company to construct its railroad in the alley in the rear of the lots, which the company declined to do unless the lot owners would consent to allow it to construct a switch track over a 10-foot strip along the rear of the lots. The owners verbally consented to this, and the company constructed the track in the alley and the switch track, after which the lots were improved and used with reference to the switch. Held that, the contract having been fully performed on both sides, the railroad company was entitled to allege such performance as an equitable defense to an action by plaintiff to recover the strip at the rear of his lot on the ground that the easement granted by parol was invalid under the statute of frauds.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Thomas P. Maupin against the Chicago, Rock Island & Pacific Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Crow & Eastin, for appellant. Brown & Dolman, for respondent.

VALLIANT, J.

Plaintiff sues in ejectment for a strip of land in the city of St. Joseph measuring 12 by 40 feet, shown on the following diagram:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Defendant has a railroad track, as shown on the diagram, in the alley through blocks 54 and 55, and a switch or spur leading from the track at a point in Angelique street through lots 1, 2, 3, and 4 of block 54. The strip sued for is that covered by the switch track, as shown on the diagram in the rear of lot 3.

The answer of defendant first denies all of the allegations of the petition, and then pleads: That in October, 1889, the respective owners of lots 1, 2, 3, and 4, of whom was the plaintiff, as owner of lot 3, solicited defendant to construct its track through the alley, which defendant agreed to do, provided it was permitted permanently to occupy a right of way of 10 feet across the rear of the lots named, for a switch track for loading and unloading purposes pertaining to those lots, to which the owners of the lots, plaintiff included, agreed; and thereupon they and others owning lots in that block petitioned the common council of the city, and obtained permission by ordinance for defendant to lay its track through the alley on condition the defendant should pave the alley. That relying on that agreement, defendant paved the alley as required, and constructed its track through the same, and a switch track along the rear 10 feet of the lots mentioned, all of which was done at great expense to defendant, and completed February 25, 1890, and defendant has ever since maintained the same as a permanent part of its railway. That upon the construction of the track on those lots, the owners of lots 1, 2, and 4 constructed large and valuable buildings, designed for handling heavy goods to be loaded and unloaded at such houses through the facilities furnished by that track. That the construction and maintenance of the track greatly increased the value of the lots, and its removal would impair the same. That ever since February 25, 1890, defendant has maintained its track on the rear of plaintiff's lot, claiming the right to so maintain it as a part of its permanent railway, and that plaintiff's cause of action has not accrued within 10 years. Plaintiff demurred to all the answer, except the general denial, and the court overruled the demurrer. The cause was tried by the court without a jury. The evidence for the plaintiff tended to show that he owned the fee to lot 3, and was in possession of all of it except the strip of 10 feet in question, which was in possession of defendant, and occupied by its switch track; that no representative of the defendant conferred with him about putting in the switch; the only persons who talked to him on the subject were Mr. Donovan and Mr. Podvant; that he had notified defendant to move its track before this suit was begun. On cross-examination of the plaintiff, he testified: That Donovan and Podvant (one owning the adjoining lot on the north; the other on the south) asked him to agree to let the railroad occupy this strip. He at first refused, but afterwards agreed to it. Then he signed the petition to the common council, asking for the passage of the ordinance allowing the defendant to lay its track through the alley, and after the defendant had constructed its tracks through the alley, and along this strip in the rear of their lots, plaintiff, Donovan, and Podvant erected buildings on their lots, respectively; conforming them to the situation made by the railroad tracks. Before that time plaintiff's building had covered his whole lot, from street to alley, 40 feet wide and 140 feet long; but, after the railroad came, plaintiff tore down his old building, and erected a new one, 130 feet long, joining with Donovan on the north, and Podvant on the south, in party walls, each 130 feet from the street to the strip occupied by the railroad. Donovan, Podvant, and the man north of Donovan erected on their lots buildings conformed to the switch, and designed for car-load freight business, and had each ever since been conducting a considerable business by car loads by means of that switch. The testimony on the part of defendant tended to show as follows: Donovan was the promoter of the project. He conceived the idea that it would be to the advantage of the owners of property in that block to have the defendant run a track through the alley, and he discussed the matter with his neighbors, —among them the plaintiff,—who came to his views. He then went to Mr. Brown, representing the railroad company, and made the request that the company build such switch. Mr. Brown at first objected to the scheme upon the ground that it was at least doubtful if such use could be made of the alley as would be required for the loading and unloading of cars for the purposes of the owners of the buildings abutting the alley, without which there would be no profit to the railroad company; but he would favor the scheme if the owners of lots 1, 2, 3, and 4 would give the right of way of 10 feet wide in the rear for a spur track. This proposal Donovan carried back to Podvant and the plaintiff. The matter was discussed by the three, and they agreed to it. In the discussion the question was asked as to what effect would it have on the title to the lots, and it was answered that the owners would retain their titles, and the railroad company would have an easement, and so they all understood it; "that the...