Missouri-Kansas-Texas R. Co. v. Freer

• Decision Date: 09 December 1958
• Docket Number: 7717,MISSOURI-KANSAS-TEXAS,Nos. 7713,s. 7713
• Citation: 321 S.W.2d 731
• Parties: RAILROAD COMPANY, Plaintiff-Appellant, v. V. R. FREER, Defendant-Respondent.RAILROAD COMPANY, Plaintiff-Respondent, v. V. R. FREER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 731

321 S.W.2d 731

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Plaintiff-Appellant, v. V. R. FREER, Defendant-Respondent.

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Plaintiff-Respondent, v. V. R. FREER, Defendant-Appellant.

Nos. 7713, 7717.

Springfield Court of Appeals, Missouri.

Dec. 9, 1958.

Motion for Rehearing or to Transfer to the Supreme Court

Overruled Feb. 7, 1959.

William A. Thie, Denison, Tex., McReynolds, Flanigan & Flanigan, Laurence H. Flanigan and John H. Flanigan, Carthage, for plaintiff.

Max A. Patten, Joplin, for defendant.

RUARK, Judge.

Injunction: Plaintiff railroad sued to restrain defendant, owner of land adjoining its right of way, from an alleged trespass on such right of way. The petition alleges that plaintiff railroad is the owner of a 100-foot wide easement across the land of defendant; that along the whole of such strip it maintains a pole and wire line which is an integral part of plaintiff's railroad system; that along a portion of the strip it maintains track for the movement of its trains; that defendant has laid a girder across part of the strip and is threatening by the installation of girders and fences to prevent plaintiff, its shippers and consignees, from using the strip for unloading and temporary storage of materials carried in the exercise of its railroad business. Prayer is for injunction to prohibit defendant from interfering in any manner with the free and unrestricted use of such strip by plaintiff, its shippers and consignees.

Upon the filing of the petition the court issued its temporary injunction enjoining defendant:

(1) From trespassing and entering upon plaintiff's 100-foot wide strip.

(2) From interfering with the possession and use of said strip by plaintiff, its shippers and consignees.

(3) From installing or maintaining any fence or barriers in, across, or upon the strip.

(4) From interfering in any manner whatsoever with the enjoyment of plaintiff, its shippers and consignees, of the free and unrestricted use of said strip.

Defendant answered, among other things, that plaintiff had removed and abandoned the roadbed on the portion of the strip involved. He asserted that 'the only possessory right of the plaintiff to said strip is to maintain a roadbed and to move its trains' and that defendant is restricted in using the strip himself only to the extent that he does not interfere with such maintenance of roadbed and movement of trains; and he denied such interference. By way of counterclaim defendant asserted that the plaintiff's easement rights are limited to those acquired by a grant which reserved unto the grantor certain mining rights on the right of way and the doing of certain related acts, such as building trams, sinking shafts, building ponds, et cetera; that plaintiff has leased a portion of the right of way to a business which we will call 'Sumners and Moore' to conduct a private business for profit by the maintenance of a concrete plant and the storage of chats and materials, the portion so leased being that from which plaintiff had removed its roadbed and rails; that Sumners and Moore now occupy such leased tract for such purpose; that such leasing interferes with the possessory rights of defendant. The counterclaim prays for an injunction against plaintiff and its lessees from entering upon the strip 'except according to the terms of the right of way deed aforesaid' and that plaintiff be enjoined from leasing any portion of the right of way to any person for private profit 'or from performing on said property any act * * * except for the maintenance of a roadbed for the movement of cars.'

Trial was commenced on the issue of defendant's motion to dissolve the temporary injunction, but this hearing was, by stipulation, transformed into a trial on all the merits. The court rendered judgment by which paragraphs 1, 2, and 4 of the temporary injunction were dissolved and paragraph 3 was left in force. This was not satisfactory to either party, and both parties filed motion to set aside or for new trial. Thereupon the order was set aside and the cause was set for further hearing. On January 20, 1958, plaintiff filed motion for permission to amend its reply by pleading a Joplin city ordinance which prohibits mining within the city limits, and this was overruled.

On January 29, 1958, judgment was rendered wherein the court found that plaintiff has a right of way; that the easement still exists and no part of it has been abandoned; that defendant has the right to enter upon the tract for mining purposes and to do certain designated things in conducting such mining operation but has no other or further right to enter upon the premises; that plaintiff has no right to use or to permit the use of the right of way in any manner which interferes with defendant's mining rights.

The defendant was enjoined (during the existence of the easement) from installing any fences or barriers on the right of way and from making any use of it which interferes with plaintiff's use as a right of way except in the exercise of his mining reservations.

The plaintiff was enjoined from any use of the right of way which interferes with the right of the defendant to enter and exercise his mining rights as reserved in the recorded grant.

Plaintiff filed motion to modify by restoring paragraphs 1, 2, and 4 of the temporary injunction or, in the alternative, for a new trial. Defendant filed motion for new trial. Said motions being denied, both parties appealed.

In case number 7717 the defendant has failed to complete his appeal by the filing of transcript and serving of briefs, and the same is now dismissed in accordance with Supreme Court Rule 1.15, 42 V.A.M.S. The case for decision on the merits is case number 7713 on plaintiff's appeal.

The Facts

Defendant owns a tract which extends an east-west distance of 667 feet. The strip or 'right of way' enters this tract near the northwest corner and extends, upon a slight curve to the south, across the entire breadth of the tract. In 1902 the Empire Zinc Company, defendant's predecessor in the chain of title, conveyed to Missouri, Kansas and Northwestern Railroad Company, plaintiff's predecessor, 'a right of way for the railroad about to be constructed,' a 'strip belt or piece of land' fifty feet on each side of a staked line across the premises. The consideration was one dollar and the change of location from the south side to the north side of the then smelter plant of the grantor, 'and if said plant shall be operated hereafter at any time said railroad company shall promptly furnish cars and remove thereon free of charge all such cinders and clay refuse material as said first party may desire to get rid of.' It was stated that the intention was to convey surface rights only for a right of way, and the grantor reserved the minerals under the surface, the right to drive drifts, build trams over the tracks in such way as not to interfere with the operation of the railroad, to build ponds, dump waste material, and sink shafts, provided that in so doing the use of the right of way be not 'unnecessarily' impaired for use by the railroad company 'in the maintenance of its roadbed and the operation of its trains.' The railroad was required to provide for drainage by the construction of 'suitable' bridges and to build 'reasonable' crossings over the tracks. The railroad was required not to build any fences on the limits of the right of way so long as the premises should be used for mining or manufacturing purposes except by consent of grantor. Finally it was stated that 'the strip of land is for a railroad right of way and is to revert to grantor its successors and assigns if it be abandoned for that purpose.'

A roadbed or dump was built along this right of way. At a place a short distance east of the west line of defendant's tract a trestle was built, rails were laid, and the strip was made a part of what was referred to as 'the old main line' which ran into Joplin. Sometime later this old main line was 'changed,' but as to just when the record is silent. It is said the old trestle was taken out approximately twenty-five years ago. About 1943 the railroad took up all the rails extending easterly from the trestle a distance of 1988 feet (this would be across most of defendant's land and a considerable distance east therefrom). It is not shown who took up the 173 feet of rails lying between the west end of the old trestle and the point where the rails now end, but they appear to have been gone for approximately the same length of time. At the time the case was tried the rails ran in from the west and ended at a point approximately 29 feet inside (east of) defendant's west line. Beyond that point and continuing west, every vestige of the old roadbed is gone. The rails are no longer there, the ties have been taken up or have rotted away, the old trestle space has been filled in. It would appear by the exhibits that even the railroad dump itself has been scraped off, washed away, or eroded into nothing except an expanse of ground, chat, and weeds. Thus, and to summarize, we have the situation where plaintiff's tracks extend across the west line of and into defendant's premises a distance of 29-plus feet. Beyond that, and for a number of years, the railroad has not maintained any roadbed; but it has at all times and still does maintain the pole and wire line along the old right of way, and this pole line is used in the railroad's general communication system. The railroad has continued to pay land right of way taxes on all the right of way and contends that it holds it for future commercial use.

Prior to the events which excited this lawsuit, the railroad had leased a portion of its right of way, immediately west of defendant's tract, to Sumners and Moore, who are engaged in the business of manufacturing ready-mixed concrete. For convenience in further discussion we will refer to this leased property as 'Tract A.' Sand and...