Scarritt v. The Kansas City & Southern Railway Co.
Citation | 29 S.W. 1024,127 Mo. 298 |
Parties | Scarritt et al., v. The Kansas City & Southern Railway Company, Appellant |
Decision Date | 05 March 1895 |
Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Ejectment for a strip of ground occupied by the defendant company for its tracks and right of way through the land of plaintiff's testator, the action having been brought by him.
The answer of defendant, so far as necessary to quote it, is as follows: The reply was a general denial.
The substance of the evidence is the following:
Nathan Scarritt:
The testimony of Gray, the manager of defendant company, shows it has been running freight trains over the strip in controversy since 1883.
This action was brought December 24, 1888. Between the periods mentioned, the defendant company constructed its road, one hundred and eleven miles long, at a cost of $ 2,000,000. A verdict having been returned for plaintiff, defendant took the usual steps and finally appealed to this court.
Reversed.
Johnson & Lucas for appellant.
If defendant constructed its road over the land in controversy with the knowledge and acquiescence of the plaintiff, and did not pay therefor, an action for the value of the land accrued to plaintiff, but not the right to maintain ejectment. Provolt v. Railroad, 57 Mo. 256; Avery v. Railroad, 113 Mo. 566; Webster v. Railroad, 116 Mo. 117; Childs v. Railroad, 117 Mo. 431; Baker v. Railroad, 57 Mo. 255; Kanaga v. Railroad, 76 Mo. 213; Gray v. Railroad, 81 Mo. 134; McClellan v. Railroad, 103 Mo. 313; Railroad v. Saltweddle, 36 Am. and Eng. Railroad Cases, 577, and note; Lewis on Eminent Domain, secs. 647, 648. Defendant's demurrer to the evidence and instructions ought, therefore, to have been given, and plaintiff's instructions refused, and, for failure so to do, the case should be reversed.
W. C. Scarritt for respondent.
Defendant's instruction number 2 is not the law, and the court did not err in refusing to grant it. It demands a verdict upon the bald fact that trains were running over the land in controversy at the date of trial. That is to say, the plaintiff at the time the suit was begun may have had a cause of action by reason of defendant's wrongful entry and possession, but by continuing that wrongful conduct defendant could defeat that right to recover. But the fact alone of trains being operated, even at the time suit was brought, will not warrant a recovery. "It is well settled in Missouri that ejectment will lie where a railway company builds its road over land to which it has acquired no requisite title by condemnation or conveyance or license expressed or implied." Dodd v. Railroad, 108 Mo. 585; Walker v. Railroad, 57 Mo. 275; Bradley v. Railroad, 91 Mo. 500; Greer v. Railroad, 82 Mo. 653. A failure to pay compensation assessed in a condemnation proceeding will constitute a valid ground for ejectment by the owner. Cary v. Railroad, 100 Mo. 292. And if the company enters upon land without complying with the requisites of the statute, it is liable in trespass or ejectment. Ring v. Bridge Co., 57 Mo. 496; 1 Redfield on Railways, p. 382. (2) Where a railroad company thus takes possession of land unlawfully, no subsequent silence or inaction on the part of the landowner can defeat his right to recover in ejectment. Childs v. Railroad, 117 Mo. 432; Bradley v. Railroad, 91 Mo. 500; Walker v. Railroad, 57 Mo. 275; Railroad v. Calwell, 15 A. 927; Railroad v. Randolph Town Site Co., 103 Mo. 467; Lewis on Eminent Domain, secs. 647, 648; Railroad v. Adams, 27 Fla. 443; Mills on Eminent Domain, ...
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