Powell v. Atchison, Topeka & Santa Fe Railway Company

• Decision Date: 23 December 1908
• Parties: JOSEE T. POWELL v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

114 S.W. 1067

215 Mo. 339

JOSEE T. POWELL v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

December 23, 1908

Transferred from St. Louis Court of Appeals.

Affirmed.

Thomas R. Morrow, Samuel W. Moore, N. M. Pettingill and Samuel W Sawyer for appellant.

(1) An easement upon a railroad right of way cannot be obtained by prescription. Railroad v. Totman, 149 Mo. 657; Railroad v. Smith, 170 Mo. 327; Costello v Railroad, 70 N.H. 403. (2) The user in the case at bar was not under a claim of right, nor adverse to the railway company, but was permissive and therefore could not ripen into an easement by prescription. Pitzman v. Boyce, 111 Mo. 387; Railroad v. Stock Yards Co., 120 Mo. 541; Smith v. Sedalia, 152 Mo. 283; Hunnewell v. Burchett, 152 Mo. 611; Anthony v. Building Co., 188 Mo. 704; Missouri Lumber Co. v. Jewell, 200 Mo. 707; Railroad v. Munsell, 192 Ill. 430; Railroad v. Ives, 202 Ill. 69; Railroad v. Johnson, 205 Ill. 698; Railroad v. Hammond, 210 Ill. 187; Schrimper v. Railroad, 115 Ia. 35; Davis v. Railroad, 140 Ind. 468. (3) The doctrine of equitable estoppel is not applicable. 11 Am. and Eng. Ency. Law (2 Ed.), 434; Bigelow, Estoppel (2 Ed.), secs. 437, 438, 441; Bales v. Perry, 51 Mo. 449; Spurlock v. Sproule, 72 Mo. 503; Acton v. Dooley, 74 Mo. 63; Burke v. Adams, 80 Mo. 504; Blodgett v. Perry, 97 Mo. 263; Hequemberg v. Edwards, 155 Mo. 514; Matlock v. Railroad, 198 Mo. 500; Grabill v. Bearden, 62 Mo.App. 459; Brinckerhoff, etc., Co. v. Horn, 83 Mo.App. 114; Estis v. Jackson, 111 N.C. 145; Holcomb v. Boynton, 151 Ill. 294; McKeen v. Naughton, 88 Cal. 462; Hoosier Stone Co. v. Malott, 130 Ind. 21; Burdick v. Michael, 32 Mich. 246; East v. Doolittle, 72 N.C. 562. (4) There is no other theory upon which a mandatory injunction can be issued. 16 Am. and Eng. Ency. Law (2 Ed.), 344; 1 Pom. Eq. Jur. (3 Ed.), secs. 46, 47; 2 Spelling, Injunctions, sec. 20; Moss v. Railroad, 85 Mo. 86; Sell v. West, 125 Mo. 621; Harrelson v. Railroad, 151 Mo. 482; State v. Railroad, 99 Ia. 565; Chalcraft v. Railroad, 113 Ill. 86; Railroad v. Clouse, 13 Can. S.Ct. 139, 35 Am. and Eng. R. R. Cases, 296; Railroad v. Erwin, 13 Can. S.Ct. 261, 35 Am. and Eng. R. R. Cases, 311.

C. H. Hilbert and Smoot, Boyd & Smoot for respondent.

(1) The finding of the court is in effect that defendant has not furnished the necessary farm crossing as required by statute. (2) (a) Defendant permitted plaintiff to accustom himself, adjust his property, and accommodate his farm to the underground crossing in such a way that he cannot be deprived of it without great detriment and a permanent wrong, and defendant is estopped to deny plaintiff the right to the underway. Elliott on Roads and Streets, secs. 127, 132, 134, 135, and 176; Gamble v. St. Louis, 12 Mo. 617; Jones v. Seligman, 81 N. Y. App. 190. (b) Where the statute requires the defendant to construct necessary farm crossings and it has acquiesced in the use of the under passage and repaired the under passage as and for a farm crossing and the plaintiff has erected his farm buildings with this in view, the crossing is established by long usage. Easley v. Railroad, 113 Mo. 243; R. S. 1899, sec. 1105; State v. Walters, 69 Mo. 463; State v. Wells, 70 Mo. 635; State v. Bradley, 21 Mo.App. 318; Jones v. Seligman, 81 N. Y. App. 190. (3) Injunction is the proper remedy to enforce a legal right, or a positive duty, or where a legal remedy is inadequate, or is not convenient, or effective, or beneficial, or complete. Jones v. Seligman, 81 N. Y. App. 190; Gordon v. Mansfield, 84 Mo.App. 367; Shepard v. May, 83 Mo.App. 272; Peterson v. Beha, 161 Mo. 513. The court did not err in refusing instructions.

OPINION

VALLIANT, P. J.

This cause comes to this court from the St. Louis Court of Appeals, on the certificate of one of the judges of that court that the opinion of the majority is in conflict with the decisions of this court in certain cases mentioned.

The following is the majority opinion of that court written by Goode, J.:

"Plaintiff owns a farm of about five hundred acres in Scotland county through which the defendant's railroad runs diagonally from the northeast to the southwest. The road was constructed through the farm in 1887 by the Chicago, Santa Fe & California Railroad Company, of which the defendant is successor. Plaintiff conveyed land for the right of way through his farm to the original company April 13, 1887, for a consideration stated to be $ 806.80. Plaintiff has been the owner of the farm for upwards of twenty-five years. Some of his land lies on the southeast side of the railroad and the remainder on the northwest side. One eighty-acre tract is in pasture. Fifty acres of it lies southeast of the railroad and thirty acres northwest. On the fifty acres on the south side there is a perennial spring which plaintiff used until 1899 for watering his stock. His barn and cattle lot are on the thirty acres north of the railroad. When the road was built in 1887 an open trestle was left between the thirty-acre tract on the north and the fifty-acre tract on the south, so that the plaintiff's stock would have easy access to the water supplied by the spring on the south side, according to their habit. This trestle was about ten feet high and under it a road was left for plaintiff's use in watering his stock and passing from the north to the south side of his farm. In 1899 the railroad company filled the passage under the trestle with earth, making a solid embankment; thus cutting off the undergrade connection between plaintiff's pasture, stock lots and barn and the land and spring on the south side. In lieu of the undergrade way the company constructed, or intends to construct, a grade crossing at the west end of the trestle and where the track emerges from a cut. This grade crossing will require gates on either side to enclose the right of way. The second count of the petition, on which relief was granted, after averring the facts somewhat as we have stated them, avers that after the construction of the railroad plaintiff's stock continued to pass through the undergrade way until it was filled in 1899; that plaintiff had arranged his feed-lots, barns, pasture and fences with reference to the undergrade way left by the railroad company and said way was the only proper and convenient place for a farm-crossing and the most convenient and best suited to plaintiff's use; that where the defendant intends to construct an overgrade way it will not be so commodious and convenient for plaintiff; that since filling up the trestle the defendant has failed to furnish plaintiff a crossing; that the grade crossing will require a readjustment of the plaintiff's feed-lots, pasture, barn and fences and be dangerous for the passage of his stock. Judgment was prayed for $ 500 damages for failure to furnish a proper crossing, with a prayer that the defendant be compelled to reopen and construct the undergrade way as used by plaintiff until filled by the defendant. The answer was a general denial.

"The court submitted eight issues to the jury as follows:

"'1. Is the underground crossing asked for by the plaintiff a practical and beneficial crossing, taking into consideration the use to which plaintiff's land is to be put and all other facts and circumstances in the case?

"'2. Can a safe and secure underground crossing be made at or near the point where plaintiff had been using the same before said embankment was put in?

"'3. Has the defendant furnished plaintiff on his farm sufficient farm crossings for the accommodation and use of the farm?

"'4. Does plaintiff have the adverse, unobstructed and continuous use of the underway as a crossing for more than ten years after the construction of its roadbed? If so, was such use and enjoyment with the acquiescence of defendant?

"'5. Would the grade crossing be more advantageous and convenient for defendant than the underground crossing?

"'6. Did plaintiff build his fences, barns and other improvements with reference to and so as to accommodate himself to said underground crossing?

"'7. Outside of the arrangement of plaintiff's gates and fences and the trouble of opening and shutting gates and danger to stock, would the underground crossing be more convenient to plaintiff than the grade crossing?

"'8. The jury will say what plaintiff's damages are, if any, by reason of a want of crossing from October, 1899, to June 2, 1900, if you find proper and sufficient crossing has not been furnished and that plaintiff is damaged thereby.'

"To all those issues except numbers three and eight the jury answered 'yes,' but to the third and eighth no answer was given.

"After findings on the issues submitted to the jury had been reported, the court entered the following finding and judgment:

"'Now the court adopted the foregoing findings of said jury, and further finds that at the time defendant constructed its roadbed through plaintiff's land it ran through the following: north half of the northeast fourth of section 25 township 64, range 11, in Scotland county, Missouri; that at the time they so built and purchased the roadway, the plaintiff had on the east side of said roadbed a spring of water and that he owned in connection with said lands on the east side a farm of something more than five hundred acres; that said spring was valuable in connection with said farm for the water privileges to be derived therefrom; that at the time of building said road defendant left under said roadway where the same crossed the aforesaid lands a passageway under the road, which served as a farm crossing to and from the balance of said farm to said spring; there was a trestleway over the same and the plaintiff used same by the consent of defendant, and...