Snyder v. Chicago, S. F. & C. R. Co.

• Decision Date: 06 December 1892
• Citation: 20 S.W. 885,112 Mo. 527
• Court: Missouri Supreme Court
• Parties: SNYDER v. CHICAGO, S. F. & C. R. CO.

20 S.W. 885

112 Mo. 527

SNYDER v. CHICAGO, S. F. & C. R. CO.

Supreme Court of Missouri, Division No. 2.

December 6, 1892.

EMINENT DOMAIN — WAIVER OF COMPENSATION — RIGHTS OF MORTGAGEE — EJECTMENT — ADVERSE POSSESSION — EVIDENCE.

1. A direction by a mortgagee to the owner of the equity of redemption to get all the damages possible from a railroad company that proposes to construct its road across the mortgaged land does not amount to a waiver of payment of compensation as a condition precedent to entry by the railroad company.

2. Where a second mortgagee authorizes the mortgagor to grant to a railroad company a right of way across the mortgaged land, and he afterwards buys the land on foreclosure of the first mortgage, his title acquired through such foreclosure sale is not affected by a grant to the railroad company made by the mortgagor in pursuance of such authorization, since the grant of the mortgagor only affects the title held by the mortgagee at the time he authorized it.

3. Where land mortgaged to a county to secure a loan of school funds is purchased from the owner by a railroad company which constructs its road over it, the want of objection on the part of the county officers, and their failure to assert the county's rights by any act until default in the payment of interest on the loan, do not estop the county, or one claiming title through it, from bringing ejectment against the company.

4. Possession of land by a railroad company under a deed from a mortgagor, and its use as a right of way, are not adverse to the mortgagee, where the company recognizes the mortgage by directing the money paid for the land to be applied in reducing the mortgage debt.

5. Where, in ejectment against a railroad company, it claims title by adverse possession, an application for continuance made by the company in another suit, in which it is alleged that possession was held by contractors, is inadmissible in evidence against it, since their possession under a contract with the company would be the possession of the company itself.

Appeal from circuit court, Chariton county; G. D. BURGESS, Judge.

Ejectment by Benjamin F. Snyder against the Chicago, Santa Fe & California Railroad Company. Defendant obtained judgment. Plaintiff appeals. Reversed.

Crawley & Son, for appellant. Gardiner Lathrop, I. H. Kinley, and S. W. Moore, for respondent.

MACFARLANE, J.

This suit is ejectment to recover a strip of land through the S. W ¼ of section 11, township 56, range 19, in Chariton county, which is occupied by defendant and used for the track of the main line of its railway between Kansas City and Chicago. The suit was commenced September 25, 1889. The answer was a general denial and two pleas of estoppel. It was admitted on the trial that the land in dispute is military bounty land. It was admitted also by the pleadings, and on the trial, that John B. Holloway was the common source of title; that on the 28th day of May, 1867, the said Holloway made and delivered to the county of Chariton a mortgage on said S. W. ¼ to secure the payment of about $1,400 borrowed by him of the school fund of said county; that about January, 1882, said Holloway sold and conveyed said land to O. H. and E. J. Wood, subject to said county mortgage; that on the 9th day of February, 1882, the said O. H. Wood made and delivered to James Snyder a deed of trust on said land to secure to plaintiff, Benjamin F. Snyder, a note for $1,050, due one day after date, with power of sale. The interest on the county debt was paid annually by Holloway until he sold to Wood, and after that by Wood, until 1889, when the interest for 1888 was not paid. It appeared from the evidence that preliminary surveys for the location of defendant's road were made through this land some two years before work was commenced. After such preliminary surveys had been made, and stakes set indicating several lines through this land, plaintiff and O. H. Wood went upon the land and examined the different lines, and from some marks inferred that defendant contemplated putting a depot on it. The evidence tended to prove that plaintiff then gave Wood authority, if a depot was put upon the land, to give the right of way through the tract, and also ground for depot purposes; but, if the depot was not located on the land, then he should get all out of defendant he could obtain for the right of way. The road was finally located through this land, but no depot was put upon it. About the 12th of February, 1887, contractors under defendant, for grading the road, were permitted by O. H. Wood to commence work on the land, under a promise that damages would be paid soon. Afterwards said O. H. Wood and defendant's agent agreed upon $1,350 as the damages to be paid for the right of way, and on the 7th day of March thereafter the said O. H. and E. J. Wood made and delivered to defendant a deed of general warranty to the right of way, being the land in dispute; and the work of grading was continued by the contractors until October or November of that year, when the road was completed and fenced by defendant, and has since been used in the operation of the road. The evidence also tended to prove that the money was paid to O. H. Wood by defendant with the understanding and agreement on his part that it should be used and applied in the payment of the county school fund debt; that this was not done, but the money was kept and appropriated by him. It was shown that the expense of building the road and preparing it for use was several thousand dollars. Plaintiff lived in Howard county, and testified that he did not think he had given defendant, or any of its officers or agents, authority to enter upon the land, and did not remember when he first learned that defendant had taken possession and commenced work. On the 5th of February, 1889, the land was sold under the deed of trust made for the benefit of plaintiff, and was purchased by plaintiff, and a deed was afterwards made and delivered to him by the trustee. The land was also sold July 12, 1889, by the sheriff, under an order foreclosing the county mortgage, and was bought by plaintiff for $1,615, to whom a deed of conveyance was made. These deeds were read in evidence. Defendant set up the foregoing facts as an estoppel to the ejectment suit.

Plaintiff asked the court to instruct the jury, in effect, that the facts did not constitute an estoppel, and that plaintiff was entitled to possession under the deeds read in evidence, and should have a verdict in his favor. This the court refused, and instructed the jury as follows: "(1) The jury is instructed by the court that the land in controversy is military bounty land, granted to a soldier of the War of 1812 for services therein; and if the jury shall find from the evidence that the defendant, by its agents, servants, or employes, had for a period of two years or more before the institution of this suit been in the open, notorious, continuous, and adverse possession of the land in controversy, then your verdict must be for defendant. (2) To constitute the possession above referred to, it is only necessary that defendant, by its agents, servants, and employes, should have entered on said land in the course of the construction of said road, and continued such possession adversely to all other claimants, claiming such possession for itself, against all other persons; and if you find that defendant, by its agents, servants, and employes, entered into the actual, open, notorious, and exclusive possession thereof in February, 1887, and continuously occupied the same, by its said agents, servants, and employes, in the construction thereof, and thereafter continued to so occupy said land by its tracks and inclosures, for the period of two years or more next before the institution of this suit, then you must find your verdict for the defendant. (3) If you find from the evidence in this case that the plaintiff authorized or directed one O. H. Wood, the occupant of said land, being the mortgagor or holding under the mortgagor, to grant the defendant railway company the right of way across the southwest quarter of section 11, township 49, range 19, for as much as he could get from the defendant, and that said Wood did grant the defendant, by deed or otherwise, for as much as he could get, right to enter...