Second Street Imp. Co. v. Kansas City Southern Ry. Co.

• Decision Date: 03 March 1914
• Citation: 255 Mo. 519,164 S.W. 515
• Parties: SECOND STREET IMPROVEMENT CO. v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Supreme Court

164 S.W. 515

255 Mo. 519

SECOND STREET IMPROVEMENT CO. v. KANSAS CITY SOUTHERN RY. CO.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

1. MUNICIPAL CORPORATIONS (§ 663) — STREETS—ALLEYS—VACATION—EFFECT.

Where an alley is vacated, the title reverts to the owner of the abutting lots.

2. EMINENT DOMAIN (§§ 268, 270)—RIGHTS OF PROPERTY OWNER.

Where plaintiff, the owner of land, allowed a railroad company to erect its depot over a strip eight feet wide, which was not included in the condemnation suit to acquire the other land of plaintiff, he cannot maintain ejectment against the company, although he may bring his action to recover the value of the land so appropriated.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Ejectment by the Second Street Improvement Company against the Kansas City Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action in ejectment for a strip of ground 8 feet wide by 140 feet long in block 11 of the old town of Kansas City, Mo. Ouster is laid as of December 1, 1903, damages asked in the sum of $10,000 and monthly rents and profits alleged to be $100 per month. The facts may be thus summarized: In 1890 the Kansas City Suburban Belt Railroad located its depot at Second and Wyandotte streets in Kansas City, Mo. The railroad company did not acquire all the lands necessary for its use for a depot and other terminal facilities, but a portion of the necessary lands were acquired for such use by the Second Street Improvement Company, a friendly corporation, whose officers and directors were largely identical with those of the railroad company. Both corporations had the same president. The lands acquired by the improvement company were lots 112, 113, and 114 of block 11. These were to the west of lands owned by the railroad and separated therefrom by a 16-foot alley. Block No. 11 does not set square with the compass, but sufficiently so for us to say that it is bounded on the north by Second street, on the south by Third street, and on the east by Wyandotte street. This block contained 10 lots numbered respectively from 107 to 116, inclusive, as indicated by the plat in evidence. The alley of 16 feet ran north and south through the block, and lots 112, 113, and 114 were on the west of the alleyway, and next to Second street; lot 112 abutting upon Second street, with the other two lots to the south of it. On the east of the alleyway were lots 111 and 110, the former of which abutted in its length upon Second street, and in its width on Wyandotte street. The depot of the Suburban Belt Railroad was built upon lots 111 and 110, and extended across this alley over on the lots acquired by the improvement company. It is the west 8 feet of this alley which is involved in this suit, and such 8-foot strip runs through the baggageroom of the depot above mentioned.

Recurring now for further development of the facts: Mr. Martin, the then president of the improvement company, in a letter written to the railroad company, thus states the reasons of the purchase: "All this property (lots 112, 113, and 114, and other property) was purchased in the interest and for the use of the Suburban Belt Railway, but at that time its financial condition was such as to have the Second Street Improvement Company take the property in its name with the understanding that later on Suburban Belt was to take it off their hands at cost, with 4 per cent. per annum net profits added."

The improvement company got its deed to the lots above named April 29, 1890. In June, 1891, the improvement company and the railroad company entered into a lease, by the terms of which the railroad company was to have possession of said lots 112, 113, and 114, for a term ending in ten years, or on January 1, 1901. The purpose or use expressed in the lease was for "depot grounds." A rental of $2,566.40 per year was fixed, which was to be paid semiannually. In the lease the railroad company were given the option to purchase upon terms in the instrument named. By ordinance approved March 12, 1891, the common council of Kansas City vacated this alley in so far as it affected the lots above mentioned.

In 1901 all the property interests of the Kansas City Suburban Belt Railroad were purchased by the Kansas City Southern Railway Company, the respondent in the case at bar. This was at a foreclosure sale in the federal court. In March, 1902, the Kansas City Southern Railway Company brought its suit to condemn lots 112, 113, and 114, supra, but it appears that this west half of this alleyway was not specifically mentioned. The right or alleged right to this strip seems to have been overlooked for a time. Upon a trial nisi the court held that plaintiff should have brought suit for the appropriation of the land, rather than a suit in ejectment for the land itself. It should be added that not only does the defendant's...