McCoy v. Wabash Ry. Co.
| Citation | 203 S.W. 249 |
| Decision Date | 29 April 1918 |
| Docket Number | No. 12821.,12821. |
| Parties | McCOY et al. v. WABASH RY. CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.
"Not to be officially published."
Action by Garland McCoy and others against the Wabash Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Craven & Moore, of Excelsior Springs, for appellant. Martin E. Lawson, of Liberty, for respondents.
Plaintiffs, claiming to be the beneficiaries of certain covenants contained in a contract to dig and maintain a ditch along a railroad right of way, brought this action for damages for an alleged breach of such covenants and recovered judgment in the circuit court.
It appears that a certain railroad company, other than defendant, owned and operated the railroad and right of way here involved, and that certain parties, other than plaintiffs, owned land subject to be affected by waters flowing along the roadbed of the railroad over the right of way; that such owners and the railroad company entered into a written contract whereby the railway company, for a valuable consideration, agreed with the owners of the land to construct and maintain a ditch which would drain and carry off the surface water along the right of way and prevent its flooding the lands of the owners aforesaid. The obligations arising on this contract were declared to be covenants running with the land in Withers v. Railroad, 122 Mo. App. 282, 99 S. W. 34.
It will be noticed, and the foregoing observations show, that neither party to the contract is a party to the present action wherein it is sought by plaintiffs to enforce the covenant for themselves against defendant, who is not the railroad company who made the contract.
In order to thus enforce a covenant running with the land it is necessary that it should be alleged in the petition, and proof should be made showing a privity of estate between the parties to the contract and the parties to the litigation wherein such enforcement is sought. Ladd v. Montgomery, 83 Mo. App. 355; Vancourt v. Moore, 26 Mo. 92; 11 Cyc. 1100. In this respect there is a failure in the pleading and proof. Plaintiffs rely on certain admissions made by defendants in the course of the trial to supply the matters just suggested. We think they do not.
Plaintiffs endeavored to obtain an admission broader than defendant would make. Defendant's admission was only that: It "is now in...
To continue reading
Request your trial
-
Cook v. Tide Water Associated Oil Co.
...418; American Law of Property, Vol. II, Section 9.5, pp. 353, 354; 14 Am.Jur., Covenants, Etc., Section 25, p. 501.6 McCoy v. Wabash Ry. Co., Mo.App., 203 S.W. 249, 250(1); Restatement of the Law of Property, Vol. V, Section 534, p. 3205; 14 Am.Jur., Covenants, Etc., Section 20, p. 496.7 Ch......
-
Voorhees v. Chicago, R. I. & P. Ry. Co.
...Admr., 23 S. E. (Ky.) 773; Soles v. Ry. Co., 114 S.E. 509; Mockowik v. Railroad, 196 Mo. 517; Rashall v. Railroad, 249 Mo. 509; McCoy v. Wabash, 203 S.W. 249; M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; Gulf, M. & N. Railroad Co. v. Wells, 48 S.Ct. 151, 275 U.S. 455; Patton v. Texas & Pac.......
- Murphy v. Barron
-
Voorhees v. Railroad Co.
...Admr., 23 S.E. (Ky.) 773; Soles v. Ry. Co., 114 S.E. 509; Mockowik v. Railroad, 196 Mo. 517; Rashall v. Railroad, 249 Mo. 509; McCoy v. Wabash, 203 S.W. 249; Chicago M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; Gulf, M. & N. Railroad Co. v. Wells, 48 S. Ct. Rep. 151, 275 U.S. 455; Patton v.......