Ragan v. The Kansas City & Southeastern Railway Company
| Decision Date | 20 September 1892 |
| Citation | 20 S.W. 234,111 Mo. 456 |
| Parties | Ragan et al. v. The Kansas City & Southeastern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
Reversed and remanded.
Johnson & Lucas for appellant.
(1) The court erred in sustaining the objection to the introduction of any evidence. The trustee was not appointed until after the institution of the action and at the time of the filing of the amended petition. (2) The court erred in the exclusion of competent evidence as to payments made for the right of way by the Kansas City, Memphis & Mobile railway (Taylor v. United States, 3 How. 198), and as to the mesne conveyances from said railroad to defendant. (3) So the court erred in refusing to admit the evidence of the witness Bernard as to the value of the property. Railroad v Calkins, 90 Mo. 543; Railroad v. DeLissa, 103 Mo. 125. (4) The court also erred in giving and refusing instructions.
Kennedy & Robinson and Robinson, O'Grady & Harkless for respondents.
(1) The statute of uses executes the trust estate conveyed to Lea and places the absolute title in Mrs. Ragan, as her separate estate. 8 Bacon's Abridgment, p. 218; Guest v Farley, 19 Mo. 147; Slevin v. Brown, 32 Mo. 176; Pawley v. Vogel, 42 Mo. 291; Chudleigh's case, 1 Co. Rep. 126. (2) Our statute of uses is identical with the statute of 27 Henry VIII., c. 10, which above authorities construe. 8 Bacon's Abridgment, p. 188; Revised Statutes, 1879, sec. 3938. (3) Even if Kennedy was a necessary party to the litigation, he might be properly brought in by amended petition as he was, under the statute of jeofails. Revised Statutes, 1889, sec. 2098. (4) At any rate the objection as to Kennedy's not being properly party plaintiff not having been made by demurrer or answer must be considered waived, and cannot be raised by objection to testimony. Revised Statutes, 1889, secs. 2043, 2047; Pettingill v. Jones, 21 Mo.App. 210; Ames v. Gilmore, 59 Mo. 542. (5) In the evidence there is no dispute about the fact that we have been in possession of the premises by ourselves and our grantors since 1833. This is sufficient to support the action of trespass without proof of title. Reed v. Price, 30 Mo. 442; Watts v. Loomis, 81 Mo. 236. (6) Actual possession of land is evidence of title against anyone who does not show a better title. Weeks v. Etter, 81 Mo. 375; Duke v. Brandt, 51 Mo. 221; Barry v. Otto, 56 Mo. 177. (7) Only witnesses shown to be acquainted with the value of the property in controversy are competent to give opinions as to the value of such property, and what property has sold for in the vicinity is not competent evidence to show value. Railroad v. Heister, 40 Pa. St. 53; Railroad v. Rose, 74 Pa. St. 362; Springfield v. Schmook, 68 Mo. 394; Chouteau v. St. Louis, 8 Mo.App. 48; Fire Clay Works v. Ellison, 30 Mo.App. 67. (8) Even supposing this action to have been a condemnation proceeding, the evidence of witnesses does not bring the case within the rule announced in Railroad v. Randolph T. S. Co., 103 Mo. 451. But this is an action in trespass for conversion of our land, in which case the damages are to be assessed with regard to the value of the land at the date of the trespass. 1 Sutherland on Damages, p. 173, and note 1; Mueller v. Railroad, 31 Mo. 262; 5 American & English Encyclopedia of Law, p. 40; Hickerson v. Mexico, 58 Mo. 61; Soulard v. St. Louis, 36 Mo. 546. (9) The Memphis & Mobile railroad acquired no rights in the plaintiff's premises which they could transmit to defendant. A mere trespass without attempt at condemnation does not give any rights. Railroad v. Randolph T. S. Co., 103 Mo. 464. (10) A party is not entitled to complain of an error in the instruction of an adverse party when his own contains same error. Reilly v. Railroad, 94 Mo. 600; Gates v. Railroad, 44 Mo.App. 488.
This is an action for damages for the appropriation by the defendant of a strip of land one hundred feet wide, through lots 20 and 21 in Catherine Purdon's addition to the town now city of Westport, in Jackson county, Missouri.
The property has a frontage of one hundred and thirty-two feet on Mill street and a depth of one hundred and twenty feet. The plaintiffs are Mrs. Lucinda Ragan and her husband and Thomas Kennedy, her trustee, under appointment of the circuit court.
According to the petition and the great weight of evidence, Mrs. Ragan is, and has been since 1859, the owner in fee simple, to her sole and separate use, of the said real estate, by virtue of a deed to her, to said property, from her mother, Mrs. Purdon. Wm. P. Lea was the original trustee, but died before this action was commenced. After this suit was begun the plaintiffs had Mr. Kennedy appointed trustee in lieu of Lea, deceased, and he was then made a party plaintiff in an amended petition.
In 1874, the Kansas City, Memphis & Mobile Railroad Company graded a right of way through these lots, and tore down the fencing. The defendant, in 1886, was organized as a railroad company and took deeds from the various owners who had succeeded to the rights of the Kansas City, Memphis & Mobile railroad, among others, to this right of way. In 1887, the defendant took possession and laid its track through these premises. The plaintiffs claim that Mrs. Ragan never parted with her title, and has not been paid for the right of way. The defendant claims that the Kansas City, Memphis & Mobile paid Mrs. Ragan's husband $ 600 in full for the right of way; that he was her duly authorized agent for that purpose, and that in pursuance of that arrangement the old company with her consent entered and graded the lots for their track. The other facts will appear in the further discussion of the case.
The verdict was for $ 2,000. Defendant has appealed.
I. The defendant objected to the introduction of any evidence, because the trustee Kennedy was appointed after the original petition had been filed. This objection comes too late. It is was available at all, it should have been made by demurrer or answer. Having neglected to make the point in his answer or by demurrer it must be considered waived. Franke v. City of St. Louis, 110 Mo. 516, 19 S.W. 938; Paddock v. Somes, 102 Mo. 226, 14 S.W. 746.
But there was no irregularity in making him a party plaintiff and permitting an amended petition to be filed. Our statute expressly authorizes such an amendment. Revised Statutes, 1889, sec. 2098.
II. On the trial the defendant offered to prove by W. R. Bernard and John J. Mastin and Charles E. Robinson that John F. Ragan, plaintiff's husband, was paid for this right of way across this property in 1874, by the Kansas City, Memphis & Mobile Railway Company, but the trial court upon the objection of plaintiffs excluded this evidence. In so ruling, we think the court erred. The defendant offered to prove that by mesne conveyances, it had become the owner of this right of way under the Kansas City, Memphis & Mobile railroad. Mrs. Ragan when on the witness stand testified that, when the Kansas City, Memphis & Mobile railroad went on this property, "her husband went to see them about it." "I sent him, of course, to see them."
As Mrs. Ragan was the owner of an estate in equity in her own right, and to her sole and separate use, in these lands, she had a perfect right to appoint an agent to represent her in obtaining compensation for this right of way. If that company then paid her duly authorized agent for and obtained possession of these lands, by his consent as agent of his wife, she is most clearly bound by his act, and this was what defendant offered to show. Hach v. Hill, 106 Mo. 18, 16 S.W. 948; Pitts v. Sheriff, 108 Mo. 110, 18 S.W. 1071.
We think the court should have permitted this evidence, for the purpose of showing that defendant and those under whom it claimed possession were not trespassers, but were there by consent of plaintiff, and had paid for the right of way.
The plaintiff had testified that the Kansas City, Memphis & Mobile had dug the ditches, thrown up the embankments and ruined the house; now if through her husband she had collected the damages thus occasioned by that company, and had stood by and permitted the company to expend its money in constructing its roadbed, and took no legal steps to restrain them, she was estopped by such conduct as effectually as if she were an unmarried woman. The argument is made by her counsel that, by merely sending her husband to see them about it, she did not authorize him to settle with the road. Her statement is not clear, but it is apparent that the trial court cut short...
To continue reading
Request your trial