Rosenberger v. Wabash Railroad Co.
| Decision Date | 11 November 1902 |
| Citation | 70 S.W. 395,96 Mo.App. 504 |
| Parties | EMIL ROSENBERGER, Respondent, v. WABASH RAILROAD COMPANY, AND RICHARD W. TAYLOR, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Montgomery Circuit Court.--Hon. Elliott M. Hughes Judge.
AFFIRMED.
Judgment affirmed.
Geo. S Grover for appellant.
(1) The defendant, as the successor in title to the North Missouri Railroad Company, was, when this suit was brought, lawfully in possession of the entire strip of land conveyed to it by Diggs in 1856. R. S. 1899, sec. 3321; R. S. 1899, sec. 3349; Hargis v. Railway, 100 Mo. 210. (2) The statute of limitations can not be here invoked as a bar to the defendant's possession, because the land was conveyed to it for a public use. R. S. 1899, sec. 4270; State v Warner, 51 Mo.App. 174; Williams v. St. Louis, 120 Mo. 403; Brown v. Carthage, 128 Mo. 10; Railway v. Totman, 149 Mo. 657.
J. D. Barnett and E. Rosenberger & Son for respondent.
(1) There is not a scintilla of evidence in the record that the defendant railroad company is the successor in title to the North Missouri Railroad Company. This suggestion of succession in title is entirely foreign to the issue in this cause, because the merits of the title can not be inquired into. R. S. 1899, sec. 3343; Krank v. Nichols, 6 Mo.App. 72; Craig v. Donnelly, 28 Mo.App. 342; Sitton v. Sapp, 62 Mo. 197. (2) In an action of forcible entry and detainer, the question is not, who is entitled to the possession of the premises; the object of the action is to restore things to the state in which they were before the forcible entry was made. The gist of the action is the forcible entry, and the object is restitution to the one dispossessed. Even the real owner may be guilty of a forcible entry and unlawful detainer. Hageman v. Moreland, 33 Mo. 86; Kings Amn'r v. Gas Light Co. 34 Mo. 34; Dilworth v. Fee, 52 Mo. 130. (3) The only question involved in this action is, whether the plaintiff was in the possession of this strip in controversy and whether defendant intruded on this possession. Authorities cited, supra.
--This is a statutory action of unlawful detainer begun by plaintiff before a justice of the peace in Montgomery county, Missouri, to recover possession of a strip of land near the main line of the defendant's railway track in that county. The piece of land whose possession is in controversy is within the limits of a strip 150 feet wide, duly conveyed to the North Missouri Railroad Company for railroad purposes by John F. Diggs and wife, in 1856. The railroad now operated by defendant was constructed shortly afterwards across the aforesaid strip, and a fence was erected which ran parallel with the track and fifty-eight feet from the center thereof, along the land to which this action refers. Plaintiff's testimony tended to show his possession of the land to the fence, at the time when he charges the unlawful entry occurred. Plaintiff had the land in cultivation in conjunction with adjacent land occupied by him. In 1900 the defendant moved the fence southward about twenty-six feet to what defendant claimed to be the true line of its ownership, under the Diggs deed. That move was unaccompanied by any other ceremony, and it forms the gist of plaintiff's present complaint.
After giving notice to defendant demanding possession of the land in question, plaintiff brought this action, June 30, 1900. There was a judgment before the justice for possession and one dollar damages. Defendant appealed and a new trial was had before Judge Hughes, a jury having been waived, in the circuit court of the same county. Again a finding and judgment for plaintiff for possession resulted. The rents and profits were adjudged to be one cent. Defendant appealed after the ordinary preliminaries.
1. Defendant complains because the trial court allowed plaintiff, at the hearing in the circuit court, to amend his complaint by changing the word "north" to "south" in describing the quarter section where the land is situated. The entire description as originally recited in the complaint is as follows:
"Part of the E. 1/2 of N.W. 1/4 S. 32, T. 47, R. 4, bounded as follows: Commencing at the west side of the public road and at the place where the defendant, the Wabash Railroad Company, tore away the fence in 1898, running west along the old fence site to the corner of the tract of land sold by John F. Diggs to the North Missouri Railroad Company, thence south fifty feet more or less to the fence erected by Wabash Railroad Company in 1899, thence east along said fence to the east end of said fence, thence north fifty feet more or less to the place of beginning."
The amendment was made in the first line by inserting an "S" instead of the "N" which there appeared. No other change was made. It will be seen by examining the entire description that the precise tract of land to which plaintiff seeks to assert his right of possession by this summary action is marked by accurate metes and bounds, while the error of locating that tract in a wrong quarter section is so obvious as scarcely to require amendment.
It is a general rule for the construction of papers, exhibiting descriptions of property, that words of particular specification prevail over more general language. Grandy v. Casey, 93 Mo. 595, 6 S.W. 376; 4 Am. and Eng. Ency. Law (2 Ed.), 799. But that rule is not of invariable application, for the chief purpose of construction is to develop the true intent of the language, and that intent should always be given paramount force when it has been discovered. Rutherford v. Tracy, 48 Mo. 325; Cooley v. Warren, 53 Mo. 166.
In reaching the true intent of a written description of property, one venerable maxim should not be overlooked, namely, that a false description is harmless where the real thing is evident. That maxim was utilized even by the ancients. Sandars, Justinian, Insts., lib. 2, 20, 30. It has been often sanctioned and applied in English decisions and in those of our own State. Broom, Maxims (7 Am. Ed.), 629; Adler v. Railway, 92 Mo. 242; West v. Bretelle, 115 Mo. 653, 22 S.W. 705; Mitchner v. Holmes, 117 Mo. 185, 22 S.W. 1070.
In Evans v. Greene, 21 Mo. 170, it was held that where the word "west" had been erroneously used instead of the word "east," as part of a description in a deed, but the other items of identification clearly disclosed the intent of the language, the false element of the description would be disregarded; and in Fenwick v. Gill, 38 Mo. 510, the court rejected an error in the descriptive number of a township where the land was otherwise described with certainty.
Guided by the principles of construction expressed in the foregoing decisions, we hold that there was no error in the ruling of the trial court permitting the amendment of the complaint in the present case, inasmuch as the land whose possession was in dispute was sufficiently identified by the other language in the plaintiff's pleading.
2. The...
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