McLellan v. St. Louis & H. Ry. Co.

• Citation: 15 S.W. 546,103 Mo. 295
• Parties: McClellan v. The St. Louis and Hannibal Railroad Company, Appellant
• Decision Date: 24 February 1891
• Court: United States State Supreme Court of Missouri

15 S.W. 546

103 Mo. 295

McClellan v. The St. Louis and Hannibal Railroad Company, Appellant

Supreme Court of Missouri, Second Division

February 24, 1891

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.

This action of ejectment by respondent against the appellant was commenced August 24, 1887, for possession of a part of appellant's roadbed and right of way across respondent's farm in Lincoln county, Missouri. The ouster was laid January 1, 1887.

The answer of defendant admitted it was a railroad corporation and its possession of the land sued for; denied the other allegations and relied on the statute of limitations. The answer, for a further defense, alleges that the St. Louis & Keokuk Railroad Company on August 8, 1870, obtained by purchase from Thomas G. Hutt and wife, who then owned the lands now owned by plaintiff, a deed conveying a right of way, one hundred feet wide, over said lands, and that said railroad fixed, located and established its right of way and graded the same over and upon the strip of land sued for and retained possession thereof until 1873, when it was succeeded by the St. Louis, Hannibal & Keokuk Railroad Company, which last-mentioned company, between 1873 and 1882, finished and completed and put in operation its road from Hannibal to Gilmore, Missouri, and over and upon the lands sued for, and continued possession of said lands and operated said railroad to the seventh day of February, 1884, at which time by order and decree of the United States circuit court for the eastern district of Missouri, it with all its property, rights, etc was placed in the hands of a receiver appointed by said court.

That said receiver at once took possession and control of said railroad, its property, rights, etc., and retained the same until December 18, 1885, when a sale thereof was made by order and decree of said court to John I. Blair who afterwards transferred and conveyed the same to the defendant; that the deed from said Thomas G. Hutt to the St. Louis & Keokuk Railroad Company contained the following clause: "That said railroad company shall construct two cattle passes under their track on said premises at such points as shall be selected by their said grantor, Thomas G. Hutt, and shall also build and maintain a good post and board fence on each side of their track through all inclosures on said premises within three months after said road shall be completed and trains run to Troy, Missouri; also make two crossings over said track in the field."

That, in 1883, the plaintiff, claiming to have purchased the lands of said T. G. Hutt, commenced his suit in the circuit court of Lincoln county, Missouri, to have the grant of the right of way made by said Hutt declared forfeited by reason of non-compliance with the requirements in said deed, and in 1884, without service of notice or summons upon or appearance of the receiver of said St. Louis, Hannibal & Keokuk Railroad Company, obtained judgment in said circuit court, decreeing and declaring the said right of way forfeited, and that said judgment was void and of no effect.

That plaintiff was estopped from claiming any benefit or advantages from said decree so rendered by the said Lincoln county circuit court, for the reason that after obtaining said decree and after this defendant had purchased said railroad and all its franchises and right of way, plaintiff acquiesced in and recognized defendant's right to the same and by his conduct waived all claim thereto and by his conduct induced defendant to lay out large sums in maintaining said right of way and constructing fences along the same, and also filed an intervening petition in the United States circuit court for the eastern district of Missouri, in which he admitted defendant's right to said right of way and possession thereof, but sought to recover damages for the same in the sum of $ 5,000 and have the same declared a lien on defendant's said railroad; that by the allegations in his said petition and submitting himself to the jurisdiction of said court he waived all advantage he might have obtained by his decree in the Lincoln circuit court; that said United States circuit court decreed he was not entitled thereto, and said judgment was final.

Plaintiff's reply was a general denial of the new matter in the answer. A jury was waived and cause heard by the court.

This state of facts is developed by the evidence: The right of way belonged to Thomas C. Hutt in 1870, and was a part of his farm of five hundred and fifty-two acres in Lincoln county. On August 18, 1870, T. G. Hutt and wife, by their deed of that date, duly executed and acknowledged and recorded in book Z, page 77, conveyed the right of way, one hundred feet wide, through said farm to the St. Louis & Keokuk Railroad Company, for $ 100, subject to the following conditions: That said railroad company shall construct two cattle passes under their tracks on said premises at such points as shall be selected by said grantors, to-wit: Thomas G. Hutt, and shall also build and maintain a good post and board fence on each side of their tracks through all inclosures on said premises within three months after said road shall be completed and trains run to Troy, Missouri; also make two crossings over said track in the fields. And provided further, that, if said railroad shall not be constructed over and across said premises in ten years from that date, the land should revert to the grantors.

Under and by virtue of this deed the St. Louis & Keokuk railroad took possession of the right of way, located and graded its road in 1872. Col. Hutt, the grantor, was then living on the farm and continued to reside there until November 23, 1882, when he conveyed the farm to plaintiff. On March 4, 1873, the St. Louis, Hannibal & Keokuk Railroad Company succeeded to all the rights and franchises of the St. Louis & Keokuk railroad, and prior to the year 1881 said road was completed and put in operation from Hannibal to Gilmore. The railroad has been in operation all the time since 1881.

On the twenty-third of November, 1882, Thomas G. Hutt conveyed the farm to plaintiff, McClellan, "subject to the right of way granted to railroad."

Plaintiff, J. M. McClellan, testified in his own behalf, that the right of way contained about twelve acres; was worth $ 4 or $ 5 per acre, for rents, and that he was damaged $ 250 or $ 300.

Cross-examination: "The railroad was built and in operation when I bought the land in 1882. The fills and cuts were made. No change in roadbed. Rent worth $ 1 per acre. The farm is worth more with the railroad through it than it would be without a railroad. The building of the railroad has enhanced the value of the lands. The railroad was located and graded over the lands in 1872, when Col. Hutt lived on the place. He lived there till he sold it to me in 1882, and knew the railroad was completed and in operation. The road has been in operation all the time since 1881. Told Walker, the superintendent, that if he did not fence the road I would have the deed forfeited. The company put in three cattle-guards, at my request After the decree of forfeiture the company, at my request, built some fence. I wrote to Mr. Case, the superintendent, to have the right of way cleaned out. He sent a lot of hands and had it done, It was at my request. I wrote him a letter making the request, and called his attention to the fact that the law required that every railroad should clean off its right of way. The company built a fence after the decree of forfeiture. I objected only because it was not the kind of fence I wanted. I employed an attorney in St. Louis in 1885, after the decree of forfeiture, to bring suit in the United States court against the railroad company for taking and appropriating the right of way."

Redirect examination: "The company built a fivewire fence part of the way before the decree of forfeiture, at my request. I notified them to clean off the right of way because the statute required it."

Recross examination: "I objected to the fences the company built because they would not turn anything. In my letter to the company I told them that the law required them to clean out the right of way."

G. L. Thurmond testified: "Am acquainted with the land where the railroad runs through McClellan's farm; the rental value of the twelve acres would be fifty cents or $ 1 per acre."

Cross-examination: "Lived near the land when railroad was put in operation. No change has been made. It has all been fenced for three years or more."

About March 1, 1883, the plaintiff, McClellan, commenced an action in the circuit court of Lincoln county, Missouri, against the St. Louis, Hannibal & Keokuk Railroad Company to forfeit and declare null the deed from Hutt to the company for the right of way, for failure to build the fences and make the passes mentioned in the deed. The papers in the case are lost. The record entries are somewhat confusing. In one, it is denominated an action for "damages," and in another, "injunction;" however, Mr. Dunn, who was the attorney, says there was only one case, and that was for "specific performance," or to declare a forfeiture. R. H. Norton, Esq., appeared for defendant, and filed a demurrer; at the spring term, 1884, it appears that Mr Norton withdrew as counsel for the railroad and the cause was from that time entirely undefended. On April 2, 1884, the circuit court of Lincoln county made a conditional decree, reciting Hutt's deed to the railroad, and the condition in it that said company should construct two cattle passes under its track at such points as should be selected by Hutt, and should maintain the fences, and ordered that the railroad proceed in...