St. Louis, C. G. & Ft. S. Ry. Co. v. Wayne County

• Decision Date: 04 December 1894
• Citation: 125 Mo. 351,28 S.W. 494
• Court: Missouri Supreme Court
• Parties: ST. LOUIS, C. G. & FT. S. RY. CO. v. WAYNE COUNTY.

28 S.W. 494

125 Mo. 351

ST. LOUIS, C. G. & FT. S. RY. CO. v. WAYNE COUNTY.

Supreme Court of Missouri, Division No. 2.

December 4, 1894.

SWAMP LANDS — DONATION BY COUNTY — VALIDITY.

A county cannot donate its swamp lands to a railroad company under the guise of a contract, whereby the company, in consideration of the land to be conveyed, agrees to build a levee on the land for the purposes of drainage, and to lay its tracks on the levee, the company to have the right to leave openings in the embankment wherever it may see fit, and to put trestlework in place thereof. Railway Co. v. Hatton (Mo. Sup.) 14 S. W. 763, followed.

Appeal from circuit court, Iron county.

Action by the St. Louis, Cape Girardeau & Ft. Smith Railway Company against

Wayne county for damages for breach of contract. Judgment was rendered for defendant, and plaintiff appeals. Affirmed.

M. R. Smith, for appellant. M. M. Sheets, Dinning & Byrns, and John H. Raney, for respondent.

BURGESS, J.

This is an action upon a written contract entered into on March 14, 1882, by and between the Cape Girardeau Southwestern Railway Company, of the first part, and the county of Wayne, of the second part, the county at the time acting through the county court. The contract, leaving off the formal parts, reads as follows: "Whereas, the Cape Girardeau Southwestern Railway has this day bought all the remaining and unsold swamp and overflowed lands belonging to Wayne county, state of Missouri, for the price and sum of $1.25 per acre, the total amount of acres of yet unsold land being in the aggregate, as near as can be ascertained, 9,500 acres, and the aggregate price therefor $11,875; and whereas, the said county of Wayne has caused a patent or deed to be made and executed to said Cape Girardeau Southwestern Railway Company for said swamp and overflowed land, but which said patent or deed has been placed in the hands of James F. Hatton as an escrow, and is to be delivered to said railway company when it shall have paid for said land, as is in this contract hereafter fully and particularly set out; and whereas, said railway proposes to do certain work, to drain, reclaim and protect said land from the overflow of the St. Francois and Castor rivers, for the price and sum of $11,875, and which is a low charge for said work; and whereas, said proposed work will open up to settlement and cultivation a large portion of the southern part of this county, now practically of no value, and also promote the health of the county by a drainage of said lands: Now, therefore, in consideration of said premises, and other valuable considerations, this contract, entered into between the said county of Wayne, by order of its county court, duly entered of record, at the February special term, or adjourned term, and the Cape Girardeau Southwestern Railway Company, witnesseth that the said county of Wayne agrees to pay said railway company the sum of $11,875, said sum being the price of 9,500 acres of swamp land sold to said railway company at $1,25 an acre, and a deed or patent to which said lands has been made and executed by said county of Wayne this day, and delivered to James F. Hatton as an escrow, and to be by him delivered to said railway company when said railway company shall have fully performed and done the work hereinafter to be specified, and which said deed or patent shall be in full and complete payment for and on account of said work, without any other or further demand of payment for or in that behalf; and said railway company expressly covenants that it will not make any reclamation against said county for any defect or imperfection of title hereby conveyed, or any part thereof. And said Cape Girardeau Southwestern Railway Company contracts, agrees, and undertakes, in consideration of said sum of $11,875, so to be paid as aforesaid set out: 1st. To erect, build, and maintain...