Morrill v. Wabash, St. Louis & Pacific Railway

• Decision Date: 12 November 1888
• Citation: 9 S.W. 657,96 Mo. 174
• Parties: Morrill et al., Appellants, v. The Wabash, St. Louis & Pacific Railway
• Court: Missouri Supreme Court

9 S.W. 657

96 Mo. 174

Morrill et al., Appellants, v. The Wabash, St. Louis & Pacific Railway

Supreme Court of Missouri

November 12, 1888

Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.

Affirmed.

M. L Gray for appellants.

(1) Article 2 of the corporation law is a part of the charter of the St. Louis County Railroad, as much so, in fact, as if all its provisions were incorporated in its articles of association. 1 Wag. Stat., sec. 1, p. 296; R. S. 1879, secs 764, 824. (2) The alleged consent and acquiescence of Robert Forsyth, and plaintiffs, after his death, in the possession of the St. Louis County Railroad, and the work done by it and defendant is no estoppel. (3) The deed of Robert Forsyth was a grant, on condition to be subsequently performed, the nonperformance of which entitled him or his heirs to make an entry and declare a forfeiture. For a breach of the condition plaintiffs had a right to reenter and declare a forfeiture and bring suit. Pierce on Railroads, 136; 4 Kent (12 Ed.) top page 126; Messersmith v. Messersmith, 22 Mo. 372; Adams v. Lindell, 5 Mo.App. 208, 209; affirmed in 72 Mo. 198; Railroad v. Hood, 66 Ind. 583, 584; Iron Co. v. Erie, 41 Pa. St. 341; Nicoll v. Railroad, 12 N.Y. 121, 130, 136; Clark v. Holton, 57 Ind. 564, 567; Ludlow v. Railroad, 12 Barb. 440; Tinkham v. Railroad, 53 Barb. 393; Underhill v. Railroad, 20 Barb. 455; 2 Washb. (5 Ed.) 12 to 24. (4) The condition was an entirety and must be wholly performed, except so far as the statute apportions it. 1 Story on Cont. (5 Ed.) sec. 26; 2 Id. sec. 1330; Kinkham v. Railroad, 53 Barb. 396.

Jos. Dickson and H. S. Priest for respondent.

(1) Plaintiffs in this case cannot insist upon a forfeiture of the charter of the St. Louis County Railroad Company. Railroad v. City, 66 Mo. 228; Kinealy v. Railroad, 69 Mo. 658; Martindale v. Railroad, 60 Mo. 508; Railroad v. Ruggles, 7 Ohio St. 10. (2) The plaintiffs cannot recover in this action. Provolt v. Railroad, 57 Mo. 256; Baker v. Railroad, 57 Mo. 265; Kanaga v. Railroad, 76 Mo. 213; McCauly v. Railroad, 33 Vt. 311. (3) The plaintiffs cannot complain that the railroad of respondent was located in a curve upon the right of way conveyed in the deed, or that by making a curve in the location of its railroad it extended outside of parallel straight lines, in a northwesterly direction through the plaintiff's land; because their ancestor stood by, not only witnessing the location of the road in that manner through his farm, but officially participating in such location. He would be estopped by such conduct from disputing such location, and his devisees and heirs at law would be equally bound by his acts.

Black J. Ray, J., absent.

OPINION

Black, J.

The plaintiffs, who are the heirs and devisees of Robert Forsyth, brought this action of ejectment to recover possession of a strip of land from thirty to forty feet in width extending from Union avenue to Forsyth Junction, in the city of St. Louis, a distance of about thirty-five hundred feet. The agreed facts are in substance these: On the seventeenth of November, 1871, Robert Forsyth conveyed the strip of land in question, it being a part of a large tract, to the St. Louis County Railroad Company for a right of way. This corporation was organized August 25, 1871, under the general laws of this state, to build and operate a railroad from the city of St. Louis to Creve Coeur creek, a distance of sixteen miles. This company made its surveys and located its road and filed a plat thereof according to law before April 15, 1872. It then took possession of the property in question, as a part of its right of way, and between that date and November, 1873, expended some thirty thousand dollars on its entire line in the construction of its railroad. Robert Forsyth was a director and a member of the executive committee during this time and to his death in November, 1873.

This company became insolvent and unable to complete its road, and on August 11, 1875, conveyed the right of way in question to the St. Louis, Kansas City & Northern Railway Company, a corporation operating a road from the Union Depot in St. Louis to Kansas City. The last-named company took immediate possession of the strip of land in suit, completed a railroad thereon, and it and the present defendant have ever since owned and operated the same. In the same year, 1875, the heirs of Forsyth conveyed to the St. Louis, Kansas City & Northern Railway Company an additional strip, fifteen feet in width. The last-named company and the present defendant were consolidated in 1879.

The defendant's road extends westward from Forsyth junction to St. Charles and thence to Kansas City; so that from Forsyth junction to Creve Coeur creek, a distance of ten miles, no railroad has ever been constructed on the line of the St. Louis County Railroad. On the twenty-seventh of August, 1881, the plaintiffs served defendant with notice of reentry and forfeiture, and then commenced this suit. They contend that the deed from their ancestor to the St. Louis County Railroad Company became inoperative by force of section 823, Revised Statutes, 1879; and also that there has been a breach of the conditions subsequent in that deed. Section 823 provides, that if any railroad company "shall not finish its road and put it in operation in ten years from the time of filing its articles of association, its corporate existence and powers shall cease, provided, that if a portion of their road shall be finished and in operation, they shall continue their corporate existence, with power to hold and manage the portion of their road so constructed, and for no other purpose."

Suppose that under this statute the corporate powers of the St. Louis County Railroad Company ceased, because of its failure to complete and put in operation any part of the road within ten years, that it thereby forfeited its franchise to be a corporation; and suppose further that a decree of forfeiture had been duly pronounced, still its unsold property would vest in the directors for the purpose of paying its debts and for distribution...