Scarritt v. Kansas City, O. & S. Ry. Co.

• Decision Date: 28 March 1899
• Citation: 148 Mo. 676,50 S.W. 905
• Court: Missouri Supreme Court
• Parties: SCARRITT et al. v. KANSAS CITY, O. & S. RY. CO.

50 S.W. 905

148 Mo. 676

SCARRITT et al. v. KANSAS CITY, O. & S. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 28, 1899.

RAILROADS — RIGHT OF WAY — ABANDONMENT.

Mere nonuser by a railroad company for a period of five years of a portion of a strip of land over which it has laid its tracks, by reason of obstructions caused by a land slide, the remaining part being used by it for storing cars, is not an abandonment of its easement in the strip.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by Nathan Scarritt and others against the Kansas City, Osceola & Southern Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Johnson & Lucas, for appellant. Scarritt, Vaughan, Griffith & Jones, for respondents.

SHERWOOD, J.

Ejectment for a strip of ground of about an acre in extent in Kansas City, Mo. This cause has been here before, and is reported in 127 Mo. 298, 29 S. W. 1024; that is to say, ejectment was brought by plaintiffs' testator against defendant's predecessor, the Kansas City & Southern Railway Company. In that case the then defendant pleaded estoppel in consequence of the acquiescence of Scarritt, plaintiffs' testator, in the construction and operation of the then defendant's road over his land, and by his acquiescence in such defendant using and occupying, for the purposes of its road, his land, and by its expenditure of large sums of money in building and operating its road; plaintiffs' testator acquiescing therein. This defense was held valid by this court, and that in consequence of said circumstances plaintiffs could not maintain ejectment for the land, and that a demurrer to the evidence was well taken, and should have prevailed. The answer of the present defendant pleaded a general denial, the statute of limitations, res judicata, and similar matter to that pleaded in the former action. Reply, a general denial.

In the case at bar, the undisputed facts show that in 1889 plaintiffs' ancestor brought ejectment for this property, and defendant admitted possession. On January 31, 1890, the judgment of the circuit court of Jackson county found that the defendant had been in possession from the date of entry, in 1882, from which the defendant appealed, claiming ownership of the property in controversy. This appeal was decided March 5, 1895, and, before the return of the mandate, plaintiffs filed the present action, alleging that the defendant entered into the possession of the premises on the 5th day of January, 1890, and unlawfully withheld the same from the plaintiffs. No change in the situation of the defendant from the time of entry, in 1882, to the present, occurred, and its present occupancy is the same, and has been the same, from that date to this. The evidence showed that a slide occurred, on ground adjacent to this, that covered the track of defendant with earth to the depth of five to seven feet, and that it had remained in that condition for a period of five years, and that at the time of trial the defendant ran its trains into Kansas City over the tracks of the Suburban Belt Company; but that this arrangement was only temporary, and that defendant's purpose and intention was and is to enter the city over the property in controversy. And the...