Pratt v. Saline Valley Ry. Co.

• Decision Date: 17 March 1908
• Citation: 130 Mo. App. 175,108 S.W. 1099
• Parties: PRATT et ux. v. SALINE VALLEY RY. CO.
• Court: Missouri Court of Appeals

108 S.W. 1099

130 Mo. App. 175

PRATT et ux. v. SALINE VALLEY RY. CO.

St. Louis Court of Appeals. Missouri.

March 17, 1908.

1. EMINENT DOMAIN—COMPENSATION—ESTOPPEL TO CLAIM COMPENSATION.

In an action to recover for land taken for the construction of a railroad, where the evidence tended to show that plaintiff promised to donate the right of way if the road was built along a hillside, instead of on the creek bottom, where it was actually built, but plaintiff protested against the construction of the road on defendant's entry until proper condemnation proceedings had been instituted, and stated that he would demand damages for unlawful entry, plaintiff was not estopped by his conduct to claim damages for the taking.

2. SAME—REMEDIES OF OWNER—RECOVERY OF COMPENSATION — STATUTORY REMEDY FOR DAMAGES—EXCLUSIVENESS.

Rev. St. 1899, § 1271 [Ann. St. 1906, p. 1044], provides that, where property will be, or has been, damaged by a corporation for public use, any person interested may have such damages ascertained, and the proceedings for ascertaining the damages shall be the same as are provided for assessing damages sustained by the appropriation of land for railroad purposes. Defendant railroad entered on plaintiff's land and constructed its right of way thereon without condemnation proceedings. Held, that plaintiff was entitled to bring an action for the land appropriated, and for damages for injury to the remainder of the land, and the remedy provided by the statute for damages was not exclusive.

3. COURTS — APPELLATE COURTS — ST. LOUIS COURT OF APPEALS—JURISDICTION — TITLE TO LAND.

In an action to recover for land appropriated by a railroad company, without condemnation proceedings, and for damages for injury to the land not appropriated, the title to the real estate taken was not involved or affected within the clause of the Constitution giving the Supreme Court jurisdiction in such cases, and this court has jurisdiction of an appeal therein.

4. EMINENT DOMAIN—COMPENSATION—MEASURE—LIMITED ESTATES—LIFE ESTATE.

In an action to recover for land appropriated by defendant railroad company as a right of way, and for damages for injury thereto, the owner's measure of damages therefor would be different if she owned the fee in the land than if she owned merely a life estate therein.

5. WILLS—CONSTRUCTION—NATURE OF ESTATE CREATED—DEVISE TO HEIRS—EFFECT.

The use of the word "heirs" to pass a fee to the devisee under a will is unnecessary, and adds nothing to the quantity of the estate devised, but it may be considered in ascertaining whether the intention was to vest a life estate in the devisee or the fee, when testator's intention is doubtful.

6. SAME—GENERAL DEVISE WITH POWER OF DISPOSITION—EFFECT.

Where the first named devisee in a will is given absolute power to dispose of the property, such devisee takes the fee unless the estate is expressly given for life only.

7. SAME—RESTRICTIONS AGAINST ALIENATION —EFFECT.

While a restriction contained in a will preventing the devisee or her heirs from selling the land devised for 50 years after testator's death was void as being an unlawful restraint on alienation, it may be considered as a circumstance showing testator's intention.

8. SAME—ESTATE DEVISED—LIFE ESTATE—IMPLICATION.

Testator devised certain land to his daughter and her heirs, and provided that neither she nor her heirs should sell or contract any debts on the land until 50 years after testator's death, his daughter to divide the land equally among her heirs, and, if she failed to do so, commissioners should be appointed to divide the land according to this provision. The will also contained similar devises of land to other children, some of which were to them and their direct heirs, conveying only a life estate. Held, upon a construction of the devise, that the daughter took only a life estate in the land, with remainder to her heirs.

9. SAME—FEE SIMPLE—SUBSEQUENT LIMITATIONS — SUFFICIENCY.

Where an estate in fee is given in unequivocal language in the first clause of the will, it cannot be cut down to a life estate in a subsequent clause without express words to that effect, or unless there is an unmistakable intention to do so.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Joseph C. Pratt and wife against the Saline Valley Railway Company to recover for land appropriated by defendant and for damages. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

The will construed in this case reads as follows:

"Know all men by these presents: That I John Lorenz of Perry county and state of Missouri, considering the uncertainty of this life, and being of sound mind and memory, do make, and declare and publish this my last will and testament.

"First. I give and bequeath to my wife Sophia Lorenz, all my property both personal and real estate with power to collect all debts due me and to pay all my debts. Then she shall pay to each of my children five dollars each as follows:

                    "1st. Henry C. Lorenz, five dollars
                    "Mary E. Nash, five dollars
                    "Louise Kenner, five dollars
                    "John P. Lorenz, five dollars
                    "Anna M. Pratt, five dollars
                

"My wife is to have and to hold this property for three years after date of this will; after the debts are paid all my land shall be divided as follows:

"1st. I will to my son Henry and his direct heirs, 120 acres of land which I bought from August Holster, lying in Boisbrule bottom, also 95 acres more or less which I bought from Benjamin Cambron; also 93 acres more or less which I bought from Charles N. Rimbroch, all lying in Boisbrule bottom.—My son cannot sell or contract any debts on this land, neither can his heirs until fifty years after my death. My son Henry shall divide the land among his children as he sees best and if he fails to do that as I have done, there shall be a commissioner appointed to divide it according to this provision.

"2nd. I will to my daughter Mary E. Nash and her direct heirs, the following tract of land, 60 acres more or less which I bought from August Layton, lying near Brewer in Perry county and state of Mo., which she occupies now; also one half of one hundred and twenty seven acres and a half in the Bottom known as the Godloup Voeker farm; my wife and Henry Voelker shall divide the land and if they can't agree there shall be a commissioner appointed to divide it. Also 40 acres more or less of the Hagan farm in Boisbrule bottom in Perry Co. Mo., to wit: running along left side of public road. My daughter Mary cannot sell or contract any debts on this land, neither can her heirs, until fifty years after my death. My daughter Mary shall divide this land equally among her heirs and if she fails to do that there shall be commissioners appointed to divide it according to this provision.

"3rd. I will to my daughter Louise Kenner and her direct heirs, 60 acres more or less in Boisbrule bottom in Perry Co. Mo., which I bought from Jules Rozier, also 30 acres joining said tract on the east side which I bought from Edwar McCabe, also 45 acres more or less which I bought from the Hagan heirs, also seven shares in the homestead of the Hagan tract now owned by Mrs. Mike Gibbar. My daughter Louise cannot sell or contract any debts on this land neither can her heirs, until fifty years after my death. My daughter Louise shall divide this land equally among her heirs, and if she fail to do that there shall be commissioners appointed to divide it according to this provision; also a little brick house and four lots more or less near the town of St. Mary's in St. Genevieve Co. Mo. she shall have power to sell this property whenever she sees fit to do so.

"4th. I will to my daughter Anna M. Pratte and her heirs, 265 acres more or less lying on the Saline in St. Genevieve Co. Mo. which I lately bought of B. S. Pratte. My daughter Anna cannot sell or contract any debts on this land, neither can her heirs, until fifty years after my death. My daughter Anna shall divide this land equally among her heirs and if she fail to do that there shall be commissioners appointed to divide it according to this provision.

"5th. I will to my son John P. Lorenz, all of my land lying on or near Cedar Fork creek in Perry county, Mo., except the homestead or all the land lying above the county road known as the Perryville and Farmington road.

"This part I will to my wife Sophia Lorenz during her lifetime; at her death it shall go to my son John P. Lorenz. My son John P. shall not sell nor contract any debts on this land, neither can his heirs, until twenty-five years after my death. After that time he can sell a part of it, say two hundred acres above the house which is now my residence.

"Also to my wife Sophia, my river farm in Boisbrule bottom Perry Co. Mo. to have and to hold as long as she lives and at her death to go to my son John P. Lorenz. My son John P. cannot sell or contract any debts on this land, neither can his heirs, until fifty years after my death. My son John shall divide this land equally among his heirs, or if he fail to do that, there shall be commissioners appointed to divide it according to this provision.

"6th. I will to my grandson Bernard Lorenz 52 acres more or less which I bought from Milt Dean; also 28 acres more or less of the same tract of land, the widow Dean holding a dower on it her life time. My wife shall hold the land until Bernard is of age, then he shall have possession of it. He can neither sell or contract debts on it until fifty years after my death. Bernard Lorenz shall divide this land equally among his heirs and if he fail to do this there shall be commissioners appointed to divide it according to this provision.

"7th. I will to my grandson John Nash, 37 acres more or less; also two shares in the widow's dower of the Isaac McClure farm in Boisbrule bottom Perry Co. Mo. My wife shall have possession of the same until John Nash is of age when he shall have...