Ruddick v. The St. Louis, Keokuk & Northwestern Railway Company

• Decision Date: 16 May 1893
• Parties: Ruddick v. The St. Louis, Keokuk & Northwestern Railway Company, Appellant
• Court: Missouri Supreme Court

22 S.W. 499

116 Mo. 25

Ruddick v. The St. Louis, Keokuk & Northwestern Railway Company, Appellant

Supreme Court of Missouri, Second Division

May 16, 1893

Appeal from Clark Circuit Court. -- Hon. B. E. Turner, Judge.

Reversed.

James H. Anderson, H. H. Trimble, Palmer Trimble and Blair & Marchand for appellants.

(1) The pass to Mrs. Ruddick and family must be considered as a gift or advancement from plaintiff to her. The land never having reverted to plaintiff for want of an entry by him upon the same, would leave the pass the property of Mrs. Ruddick, and she alone could sue for refusal to renew the pass, or to pass her over the railroad. There can be no resulting trust in favor of the plaintiff in regard to money paid by him for the pass for her; nor in regard to the consideration therefor and he has no cause of action for her interest growing out of the alleged forfeiture. Gilliland v. Gilliland, 96 Mo. 522. (2) There being simply a breach but no forfeiture or reverter of title or land to plaintiff for want of entry by him, the right or interest of Mrs. Ruddick was simply a chose in action and not assignable to any one. Therefore, from no point of view, could plaintiff have cause of action on account of said refusal of a pass to Mrs. Ruddick, against defendant. 2 Washburn on Real Property, sec. 16, p. 13; Moore v. Wingate, 53 Mo. 398. (3) The action is one affecting the title to land within the meaning of Revised Statutes, 1889, sec. 2011, and hence the trial court had no jurisdiction over the Lewis Co. land. McReynolds v Railroad, 110 Mo. 484; Doyle v. Railroad, 113 Mo. 280.

Craig McCrary & Craig, F. T. Hughes and T. L. Montgomery for respondent.

(1) This is a suit for the value of the land appropriated as well as for damages directly resulting from its appropriation. Plaintiff's farm is one tract of land lying in Clark and Lewis counties, and there is no improper joinder, but a plain and simple statement of one cause of action. Allen v. Railroad, 84 Mo. 646; Provolt v. Railroad, 57 Mo. 256; Baker v. Railroad, 57 Mo. 265; Ring v. Bridge Co., 57 Mo. 496; Hubbard v. Railroad, 63 Mo. 68; Ragan v. Railroad, 20 S.W. 234. (2) Plaintiff could not split up his cause of action and bring part in one county and part in another, as the one could be plead as a bar to the other. Union, etc., Co. v. Traube, 59 Mo. 355; Wagner v. Jacoby, 26 Mo. 532; Corby v. Taylor, 35 Mo. 447; Lane v. Francis, 15 Mo.App. 109. (3) Plaintiff is not seeking to enter upon the land but simply asks damages for the wrongful appropriation of his land by the railroad company. Where the railroad company fail to institute condemnation proceedings, but construct the road upon another's land without following the statute, the owner may pursue the usual common law remedy. Mills on Eminent Domain [1 Ed.] secs. 89, 90, p. 117 and cases cited. See also cases cited under paragraph 2, supra; Blesch v. Railroad, 43 Wis. 183; Railroad v. Fuller, 48 Ga. 423; Hartz v. Railroad, 21 Minn. 358; Railroad v. Kernadle, 54 Ind. 314; Railroad v. Streeter, 8 Kan. 133; Ewing v. St. Louis, 5 Wall. 413. (4) The conditions of this grant of right of way were clearly expressed in the deeds. And defendant failing to comply with the conditions, namely, to issue passes, by its act rendered the deeds void, and the defendant, at the date of the refusal began holding the easement wrongfully, and so the consideration has failed and plaintiff is entitled to payment for his land as though no such grant had been made. The plaintiff could not declare the grant void ab initio because of a violation of the contract so as to sue in trespass or ejectment, yet he could state the facts as they are stated in this case, and claim damages resulting from the appropriation of his land for right of way. Hubbard v. Railroad, 63 Mo. 68; Allen v. Wabash, 84 Mo. 646; Siglar v. Van Risser, 10 Wend. 414. (5) A condition in a deed for support of grantee partakes of a personal character and will not shift to a grantee or grantor. Carber v. Cobb, 36 N.H. 344; Eastman v. Bachelor, 36 N.H. 141; Morrill v. Railroad, 96 Mo. 174; Tiedman on Real Property, sec. 273; Talliman v. Coffin, 4 Comst. 134. (6) Covenant for a pass does not run with the land unless assignees are named in the deed. Hetton v. Railroad, 25 Mo.App. 322; Baker v. Railroad, 57 Mo. 265; Kanaga v. Railroad, 76 Mo. 207; Hubbard v. Railroad, 63 Mo. 68.

OPINION

Burgess, J.

This is an action at law tried by a jury. The case is that plaintiff was the owner of a large tract of land lying in a body, partly in the county of Clark and partly in the county of Lewis, in the state of Missouri. On the tenth day of July, 1872, he conveyed to the Mississippi Valley & Western Railway Company a right of way over certain of this land in Clark county, for the consideration of $ 1.00 in money and an agreement on the part of the railway company, incorporated in the deed, to furnish the plaintiff with an annual pass during the period of his natural life, over the company's railway from the city of Keokuk to the city of Quincy, and in case such pass is not given or if it shall be revoked, then said deed to be void.

And in 1879 the plaintiff by another deed, his wife, Mattie Ruddick, joining with him, conveyed to the defendant company a right of way over certain of his lands lying in the county of Lewis for the consideration of "a certain and continuous pass granted to said Mattie Ruddick and family over said St. Louis, Keokuk & Northwestern Railway, and it is agreed that if said pass is refused or withheld by the company now operating said railway or their successors, then said strip of land to revert back to said grantors and this deed to be void."

In 1875 the property and franchises of the railway company were sold to foreclose a mortgage, under a decree of the circuit court of the United States and one Stone became the purchaser at the mortgage sale. Soon thereafter Stone sold the railroad property and franchises to the defendant, which is a railroad corporation organized under the laws of Missouri, and also under the laws of Iowa. The agents of the defendant recognized plaintiff's claim to his annual pass until the expiration of the year 1883, and to January 29, 1884, when they declined to issue to him any further. The defendants also recognized the claim of plaintiff's wife, Mattie Ruddick and her family to an annual pass until the fourteenth day of January, 1887, when it declined to issue it any further. Upon these facts the plaintiff prosecutes his suit upon the ground that the land described in the deeds (which were duly recorded in the counties in which the different described tracts of lands lie) upon failure to comply with the conditions in the deeds defendant forfeited the land, and seeks to recover the value to his entire tract, by reason of the taking and occupancy of the strip through the same for track and right of way. There are two different counts in the petition, one bottomed on the breaches of the conditions of the deed to the Clark county, and the other on the breaches of the conditions of the deed to the Lewis county land. The damages were assessed as a whole, at the sum of $ 3,618.

The usual motion for new trial and in arrest being filed and overruled, the case is appealed to this court.

The deeds from the plaintiff to the different railroad companies both contain substantially the same conditions in regard to forfeiture on failure to furnish annual passes according to the terms of the deeds. The passes were furnished for quite a number of years, and finally refused by defendant, who succeeded by purchase to the rights and franchises of the Mississippi Valley & Western Railroad Company, and also to the rights and franchises of the St. Louis, Keokuk & Northwestern Railway Company, and, if the covenants in the deeds were not coupled with the conditions and provision for forfeiture for failure to furnish the passes, they would not run with the land and would not be binding on defendant. The covenant would not run with the land because foreign to, independent of and not in any manner connected with it. Only such covenants and conditions as are connected with, or requiring something to be done on, or about the land itself run with it. Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Railroad v. Kenney, 20 American and English Railroad Cases, 458; Railroad v. Smith, 9 S.W. 865; Railroad v. Reeves, 64 Ga. 492; Lydick v. Railroad , 11 American and English Cases, 336.

But as the covenants in both deeds are covenants with the subsequent condition of forfeiture upon failure or refusal to furnish passes as provided in the one for plaintiff and in the other for his wife and family as provided in them, and as therein expressly set forth, defendant as the successor by purchase to the grantees in those deeds, took subject to...