Meyer v. Oregon Interurban Railway Co.

• Decision Date: 04 May 1925
• Citation: 271 S.W. 865,219 Mo.App. 360
• Parties: CHARLES E. MEYER, Appellant, v. OREGON INTERURBAN RAILWAY COMPANY, PAUL FRYE and T. J. LOWDEN, Respondents.
• Court: Kansas Court of Appeals

271 S.W. 865

219 Mo.App. 360

CHARLES E. MEYER, Appellant, v. OREGON INTERURBAN RAILWAY COMPANY, PAUL FRYE and T. J. LOWDEN, Respondents.

Court of Appeals of Missouri, Kansas City

May 4, 1925

Appeal from the Circuit Court of Holt County.--Hon. Guy B. Park Judge.

AFFIRMED.

Judgment affirmed.

Harry M. Dungan and Eastin & McNeely for appellant.

Tibbels & Bridgeman for respondents.

ARNOLD J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is an appeal from the action of the trial court in dissolving a temporary injunction. Plaintiff sought to restrain defendants from cutting and removing from certain tracts of land described in the petition, valuable walnut timber standing thereon.

The petition alleges plaintiff, in 1908, made one deed and in the year 1909, made another, conveying by each a small tract of land for railroad right of way and depot grounds; that defendant, the Oregon Interurban Railway Company was organized as a railroad corporation under the provisions of chapter 12, article 2, Revised Statutes 1899, and had power to acquire lands, as prescribed by law, for railroad purposes only, and said tracts were taken, held and used by grantee for such purposes until the year 1918, when it ceased to operate its railway, abandoned its road and depot grounds and permitted its property to be sold at tax sale; that it had run no trains over the road from the year 1918 until the filing of the petition; that it had allowed its tracks and bridges to become out of repair and unfit for use and that by reason of such abandonment the lands had reverted to plaintiff as the owner of the servient estate.

The answer states that defendant Paul Frye was the owner of the property formerly owned by said railroad company; that the property had been sold for taxes; that said Frye had purchased it from the purchaser at said tax sale, and that he was in possession of all the property, including the land mentioned in the petition. The answer also is a general denial.

Evidence was introduced in support of the petition which tended to show that the defendant railway company had built a line of railroad three to four miles in length connecting Oregon, the county seat of Holt county, with Forest City, its nearest railroad point on the line of the Chicago, Burlington & Quincy Railroad; that in 1918 the company ceased to operate the road actively, sold its engines and equipment and fuel on hand and thereafter ceased to care for its property, allowing it to be sold for taxes; that it failed and refused to pay its franchise tax to the State and allowed its depot and fences to go to rack and ruin and its right of way to grow up in weeds and sprouts; that the State had forfeited the charter of the company for failure to make return and pay its franchise tax; that the roadbed had become washed and excavated, the bridge rotten and weak and the track imbedded in the earth and washed over long distances; that no train had been run on the road since its abandonment.

The evidence further tended to show that just prior to the filing of the petition in this case the defendants went upon the land described therein, formerly used by the railroad company, and cut some large walnut trees. Plaintiff testified in his own behalf and on cross-examination stated that on March 23, 1910, he had deeded this land to his wife Anna E. Meyer, not a party to this suit; that he did not own any of the land when the suit was filed, nor on the date of the trial; that his wife Anna E. Meyer owned it at said times; that neither the plaintiff nor his wife was in possession of the land deeded to the railroad, as aforesaid; that it was occupied by the railroad for right of way and other purposes and was still occupied by said railroad. At this point in the trial the following took place:

"MR. TIBBELS: The defendant offers in evidence page 374 of book 141, deed records of Holt county, Missouri, the same being a record of a warranty deed from Charles E. Meyer to Anna E. Meyer, dated March 23, 1910. Said record above referred to is in words and figures, as follows to-wit: (Clerk will here please copy same.)

"MR. TIBBELS: That is all.

"THE COURT: If it is a fact this man's wife is the owner of that land, and he has conveyed it to her, we'd just as well stop this lawsuit now.

"MR. DUNGAN: We don't know about that, your honor.

"MR. TIBBELS: Well, here is the deed.

"(Arguments here followed.)"

On redirect examination plaintiff testified that he and his wife lived together on the land (part of which was sold to the railroad company) as a homestead, and that "it is just an error there, of drawing the papers, that is all." Thereupon counsel for plaintiff stated to the court, as follows:

"MR EASTIN: We desire to ask the court, in view of the relation that still must exist here between the owners of this property, to permit us to amend by making Mrs. Meyers a party, and alleging definitely the interests of the parties in this matter. We do not touch any question involved in this injunction by doing that. We simply carry on the suit originally begun, and put all the parties who are interested in it into the...