Simpson v. Wabash Railroad Company

• Decision Date: 22 June 1898
• Citation: 46 S.W. 739,145 Mo. 64
• Parties: Simpson, Appellant, v. Wabash Railroad Company
• Court: Missouri Supreme Court

46 S.W. 739

145 Mo. 64

Simpson, Appellant, v. Wabash Railroad Company

Supreme Court of Missouri, First Division

June 22, 1898

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Reversed and remanded.

Noble & Shields and Mills & Grant for appellant.

(1) The natural configuration of the premises in question, and of the land adjacent thereto, was immaterial and not pertinent to the questions at issue, and testimony thereto should not have been admitted over plaintiff's objection. (2) Particular descriptions in a deed prevail over general, and nothing passes by a deed that is not described in it. 1 Jones' "Law of Real Property in Conveyancing," secs. 325 and 410; Grandly v. Casey, 93 Mo. 595; Railroad v. Greene, 68 Mo. 169. (3) The second of the two instructions given at the request of the defendant ignores the time prescribed as a bar by the statute of limitation of actions, and authorizes a verdict for defendant on the ground of adverse user, without reference to the question whether or not such adverse user had been enjoyed for the period prescribed by the statute as a bar, to wit, ten years. Bunten v. Railroad, 50 Mo.App. 414; McGowan v Railroad, 23 Mo.App. 203; James v. Kansas City, 83 Mo. 567; R. S. 1889, sec. 6764. (4) The period of prescription, where a right to flood land of another is claimed from adverse user, must be reckoned from the time the land in question was flooded, not from the time the work which ultimately caused the flooding was begun. Washburn "On Easements," p. 167; Benton v Railroad, 50 Mo.App. 414; Culver v. Railroad, 38 Mo.App. 138. (5) The user, to give rise to a prescriptive right, must be under a claim of right, if not against all the world, at least against plaintiff and his predecessors in title, and can not be a user exercised under a mistake as to its character. Adkins v. Tomlinson, 121 Mo. 487; McWilliams v. Samuel, 123 Mo. 659; Kunze v. Evans, 107 Mo. 494; Crawford v. Ahrens, 103 Mo. 88; Finch v. Ullman, 105 Mo. 255; Milling Co. v. Riley, 133 Mo. 586. (6) Purchasing a license from the party to whose rights the flooding is claimed to have been adverse, and paying $ 2,000 therefor, is the highest recognition of the rights of such party. Lovell v. Frost, 44 Cal. 474; Railroad v. Mead, 63 Cal. 112; Ins. Co. v. Stroup, 63 Cal. 150; Jackson v. Britton, 4 Wend. (N. Y.) 507; Jackson v. Croy, 12 Johns. (N. Y.) 427; Davies v. Collins, 43 F. 33; Koons v. Steele, 19 Pa. St. 203. (7) The date of acknowledgment is prima facie that of execution. Johnson v. Moore, 28 Mich. 3; Eaton v. Trowbridge, 38 Mich. 454; Clark v. Akers, 16 Kan. 166; Gorman v. Stanton, 5 Mo.App. 585; Buck v. Gage, 27 Neb. 306; R. S. 1889, sec. 2420.

Geo. S. Grover for respondent.

(1) The license of 1883 was broad enough in terms to cover lot 13. West v. Bretelle, 115 Mo. 653. (2) The easement or servitude in favor of defendant created by the license of 1883 was a covenant running with the land which binds the owner thereof, including plaintiff. Poage v. Railroad, 24 Mo.App. 199; Morgan v. Mason, 20 Ohio 401; Underwood v. Carney, 1 Cushing, 285; Huttemeier v. Albro, 18 N.Y. 48; Washburn on Easements and Servitudes, pp. 51, 76, 78, 81, 91; Barry v. Edlavitch, 35 A. 170; Valentine v. Schricker, 38 N.Y.S. 417. (3) The plaintiff's right of action is barred by the statute of limitations. James v. Kansas City, 83 Mo. 567; Polly v. McCall, 37 Ala. 30; Bolivar v. Neponset Mfg., 16 Pick. 241; Parker v. Foote, 19 Wend. 309; Hastings v. Livermore, 7 Gray, 194; Washburn on Easements [4 Ed.], secs. 6 and 30. (4) The plaintiff, prior to his purchase under the mortgage of August 23, 1892, had both actual and constructive notice of defendant's easement in, as well as of its adverse possession of, lot 13, and therefore he was not, in any sense, an innocent purchaser. Shumate v. Reavis, 49 Mo. 333; Branch v. Doane, 17 Conn. 402; Crosby v. Bessey, 49 Me. 543.

OPINION

Marshall, J.

The statement of this case, by counsel for appellant, is so clear, full and fair that we adopt it.

"This is an action of ejectment brought on the twenty-eighth day of June, 1894, to the May term, 1894, of the circuit court of St. Louis county. The petition is in the ordinary form, plaintiff claiming that he is entitled to possession of lot 13 in the town of Ferguson, formerly Ashland, and that defendant has unlawfully entered upon the same, and unlawfully withholds possession thereof from the plaintiff, to his damage, etc.

"The amended answer is, first, a general denial; second, a claim of open, notorious, adverse, hostile and continuous possession of the premises sued for for more than ten years prior to the institution of this suit; and, third, that prior to the plaintiff's right of entry on the land sued for, if such right ever existed in favor of plaintiff, the defendant acquired by proper conveyances of record, from the then owners of said land, certain perpetual licenses to flood and overflow the whole or any portion of the tract of land here sued for, which said licenses are duly recorded, etc. The reply was a denial of the answer.

"The case was tried partly on an agreed statement of facts and the documentary evidence admitted thereunder, and partly on oral testimony. The material facts of the agreed statement, and of the instruments admitted in evidence thereunder, are as follows: That on the seventh day of July, 1883, George J. Plant and others executed and delivered to the Wabash, St. Louis & Pacific Railway Company, the predecessor in title of the defendant in this case, a perpetual license, which is recorded in full in book 24, page 151, of the records of St. Louis county, Missouri, and is, in substance, as follows: The grantor granted to the railroad company "a perpetual license to flood and overflow, at all times, the whole or any portion of the tract of land containing seven acres, more or less, lying and being in the town of Ashland (now known as Ferguson) in lots 9, 10 and 11, lying immediately west of the Florissant road and north of January avenue; the said tract of land is to embrace so much land as shall be covered by the water of the pond, the maximum top or surface line of which shall be level with the top of the paving in the waterway or wasteweir, to be established by the company, it being the true intent of this instrument to vest in the said party of the second part a license to overflow so much of the land of the parties of the first part as shall be flooded by raising the water to any stage not exceeding the limit of the acreage hereinbefore mentioned, except in case of flood, allowance being made for temporary overflow;" the railroad company agreed "to maintain at all times a good and useful bridge, sixteen feet wide, with railing on each side, across the waterway or wasteweir, the center line and direction of said bridge, and of the dam to be constructed, being the center line of January avenue, and the center of the dam being 718 feet distant from the center of Florissant road measured westerly along the said line;" "it is further agreed that this instrument shall not be so construed as to pass the legal title to the land to be overflowed, as aforesaid, but that, subject to said license, the said title shall remain in the parties of the first part, their heirs and assigns."

"That at the May term, 1887, of the circuit court of St. Louis county, a partition was had of the Plant estate, wherein the above mentioned lots, 9, 10 and 11, and also lot 12 and lot 13 (the lot here sued for) were allotted to George J. Plant. That after several intermediate conveyances of lots 9, 10, 11 and 13 (in some of which the above license is referred to and in some not, and when referred to, it is "a license to flood lots 9, 10 and 11"), the title to the said lots rested in Jos. G. Calkins, who, with his wife, on the twenty-third day of August, 1892, executed a deed of trust on said lots to secure an indebtedness of $ 12,000 to Nielander et al., which deed of trust was recorded September 2, 1892, in book 65, at page 52, of the records of St. Louis county, Missouri. That on the said twenty-third day of August, 1892, said Calkins and wife executed a second deed of trust on the said lots 9, 10, 11 and 13, to Niedlander et al., trustees, to secure notes for $ 3,000, which deed of trust was recorded on the first day of November, 1892, in book 65, at page 241, of the records of said county. That on the fifteenth day of September, 1892, Joseph G. Calkins and wife conveyed said lots, 9, 10, 11 and 13, to the Niedlander-Thomas Real Estate Company, by deed recorded October 14, 1892, in book 65, at page 194, of the records of said county.

That on the eighteenth day of October, 1892, the Niedlander-Thomas Real Estate Company acknowledged, before a notary public, a license to the Wabash Railroad Company, which license was dated as of first day of August, 1892, and was recorded on the fourteenth day of November, 1892, in book 63, page 426 of said county; said last mentioned license was, except as to the land to be flooded and the description of the dam, which is omitted, substantially the same as the license of July 7, 1883, hereinabove mentioned; the land to be flooded being described in the license of 1892 as "the whole or any portion of a tract of land containing seven acres, more or less, lying and being in the town of Ashland, now known as Ferguson, in St. Louis county, Missouri, in lots number nine, ten, eleven and thirteen and such other lots and tracts of land adjoining thereto as are more particularly located and set out, described and shown in the tracing fully describing said lots, which is hereto annexed and made a part of this agreement; instead of as it was in the license of 1883, "the whole or any portion of a tract of land...