St. Louis-San Francisco Railway Co. v. Dillard

• Decision Date: 20 November 1931
• Docket Number: No. 29787.,29787.
• Citation: 43 S.W.2d 1034
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. F.M. DILLARD, Appellant.
• Court: Missouri Supreme Court

43 S.W.2d 1034

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. F.M. DILLARD, Appellant.

No. 29787.

Supreme Court of Missouri.

Division One, November 20, 1931.

Appeal from Pemiscot Circuit Court. — Hon. John E. Duncan, Judge.

AFFIRMED.

Von Mayes for appellant.

(1) The plaintiff having surrendered to defendant possession of the property in controversy by removing its track therefrom at the request of defendant, which was an affirmative act, thereby indicating a disclaimer, and thereafter standing silently by while defendant in good faith erected valuable and lasting improvements thereon, and paid the taxes against same, is thereby estopped from asserting title to said property regardless of whether it was private or public property. 21 C.J. 1168, sec. 174; St. Joseph v. Railroad, 268 Mo. 47; Town v. School District, 186 S.W. 1078; Collins v. Rogers, 63 Mo. 515; 21 C.J. 1152, sec. 155; p. 1160, sec. 163. (2) The Statute of Limitations applies to railroad property, except that devoted to railroad purposes. Railroad v. Smith, 170 Mo. 332; Palmer v. Jones, 188 Mo. 163; 32 Cyc. 1471. (3) Mere non-user of the property for railroad purposes will not start the Statute of Limitations running, but permanent non-user or abandonment of the property for such purposes will start it. The plaintiff surrendered possession of said property to defendant by removing its track, and made no attempt to use same thereafter, which constituted abandonment. Hatton v. Railroad, 253 Mo. 675; St. Joseph v. Railroad, 268 Mo. 55; Roanoke Inv. Co. v. Railroad, 108 Mo. 66; McClain v. Railroad, 90 Iowa, 646; 1 C.J. 6. Abandonment, dissociated with adverse possession, will not divest title to real estate. Powell v. Bowen, 214 S.W. 144. But an easement for railroad purposes may be lost by abandonment regardless of adverse possession. Sec. 21, Art. 2, Mo. Constitution. (4) Plaintiff offered to lease the property in question to defendant, which shows plaintiff regarded same as private property. Public property cannot be leased for private purposes. 33 Cyc. 190. (5) While the rights of corporations representing the public cannot be defeated by a statute of limitations, and estoppel cannot ordinarily be invoked against them, in special cases, where justice requires it, the principle of estoppel, laches, or abandonment, will be applied against a municipal corporation. There is apparent reason why this principle should more aptly apply to railroad companies. Town of Montevallo v. Village School District, 186 S.W. 1078. (6) Where a public corporation by affirmative action surrenders possession of its property to another, such corporation may be estopped to claim such property thereafter. St. Joseph v. Railroad, 268 Mo. 63. (7) Where title by adverse possession has become vested in the adverse claimant a mere recognition of some other title does not revest the title acquired by adverse possession. Reader v. Williams, 216 S.W. 738. The letter and application for lease of defendant, offered in evidence by plaintiff, was written June 2, 1926, thirteen years after defendant took possession. (8) Adverse possession under color of title of part is adverse possession of the whole. Sec. 1309, R.S. 1919.

E.T. Miller and Ward & Reeves for respondent.

(1) The case was tried at law by the court without a jury and the Supreme Court cannot interfere with the trial court's findings if there is any substantial evidence to support it. Bowyer v. Bradford, 162 Mo. App. 138; Jacobs Banking Co. v. Fed. Reserve Bank, 34 S.W. (2d) 173; Walther v. Null, 233 Mo. 104; Green v. Whaley, 271 Mo. 636; Abrams v. Unknown Heirs, 317 Mo. 216. (2) Plaintiff made a prima-facie case by admissions of a common source of title, and by introduction of mesne conveyances to plaintiff from such common source, and the burden of proof was then on the defendant to defeat plaintiff's title, and establish one or more of his affirmative defenses. Whitworth v. Barnes, 256 Mo. 468. (3) Under the evidence, if a jury had been sitting, the court could not have given a peremptory instruction for defendant, and a jury finding for plaintiff would not be disturbed by this court. The trial court, sitting as a jury, finding for the plaintiff, is equally binding on this court. Volkart v. Groom, 9 S.W. (2d) 947; Jacobs Banking Co. v. Fed. Reserve Bank, 34 S.W. (2d) 173. (4) The Statute of Limitations did not run against the plaintiff because the land in controversy was acquired for public use as a part of the depot ground or right of way of plaintiff, and was so shown on the dedication plat. K.C. Northern Railroad Co. v. Baker, 183 Mo. 312; Powell v. Railroad Co., 215 Mo. 339. (5) Neither can the railroad company be estopped to assert title to property dedicated to it for public use under the facts shown in the evidence. St. Joseph-St. Louis & Santa Fe Ry. Co. v. Smith, 170 Mo. 327; Summers v. Ry. Co., 2 Fed. (2d) 717.

STURGIS, C.

Suit in ejectment to recover the major portion of a small triangular tract of land in the town of Wardell, Pemiscot County, claimed by plaintiff to be part of its right-of-way and depot grounds. The railroad runs nearly north and south through this town and its general right-of-way is 100 feet wide, and this tract adjoins and is an enlargement of the right-of-way on the east. The tract in question is 45 feet wide at the south and comes to a point 225 feet further north. The railroad runs at an angle eastward and this tract is between the standard right-of-way line and Railroad Street running north and south.

The petition is in conventional form in ejectment, praying judgment for possession and small damages. The answer contains a general denial and pleads as an affirmative defense the Statute of Limitation of ten years; also an estoppel in that plaintiff stood by and without protest permitted defendant to place valuable improvements on said disputed tract. The question of defendant's adverse possession for more than ten years before the bringing of this suit was the issue most strongly contested. A jury was waived and the case tried by the court as a jury, resulting in a judgment for plaintiff. The defendant filed motion for new trial, which was overruled, and the case is here on defendant's appeal in due form.

Both parties say and so stipulated that John Winters is the common source of title, though it is shown that plaintiff's title or claim of ownership antedated the claim of ownership by Winters. In fact, Winters testified that when he bought the land (from whom he does not say) there was a switch or spur track, connecting with the main line, on this triangular tract in controversy, and plaintiff was to that extent at least in possession. The parties, however, tried the case by agreement that John Winters is the common source of title and the prior title was not inquired into except incidentally. Plaintiff, however, put in evidence the original plat of the town of Moscou, the name being later changed to Wardell, which shows that the owners at that time. February, 1901, were James F. and Robert L. Warren. Evidently the railroad was then constructed or being constructed as this plat shows the line of the right-of-way through the town, and on the tract now in controversy is marked a small rectangle designated "Depot." Evidently it was intended by the persons laying out and platting the town and owning the whole body of land that the railroad would build its depot at or near this point, and this may account for the right-of-way being wider at this point than the 100 feet. What actually happened, however, was that the railroad built its depot on the west side of its main line track nearly opposite the point so designated, but it did build a switch track extending beyond its usual right-of-way onto the tract in controversy. Evidently the railroad then claimed and occupied this tract as part of its right-of-way.

As we have said, John Winters, the agreed common source of title, testified that when he bought the land in question this railroad had a switch on it — the plaintiff company "put it there and they used it for a switch." Winters further says that he then in 1905 "undertook to make them move the switch off that land" and brought suit for such purpose. Such proceedings were had in that suit, John Winters, plaintiff v. St. Louis, Memphis & Southeastern Railroad Company et al., defendants, that a judgment or decree was entered at the November Term. 1905, of the Circuit Court of Pemiscot County, which is not set out in full, but by which decree defendant says "the title to said property was divested out of said Winters and vested in the St. Louis, Memphis & Southeastern Railroad Company, a corporation," plaintiff's predecessor in title. It is on account of this decree that plaintiff traces its title to John Winters and concedes him to be the common source of title.

Some eight years later, in 1913, John Winters, notwithstanding this decree divesting him of title, conveyed this land by warranty deed to the present defendant. Defendant says that he did not have or consult an abstract of title when making the purchase, did not know of the decree divesting his grantor of title, though same was a public record, and bought in good faith, believing he was getting a good title, though he admits that he knew this railroad switch was then and had been for years on the land and in use as part of the railroad.

Defendant further testified that he at once on purchasing from Winters began using parts of the tract in question. There was already a small building there which had been used as a blacksmith shop, and defendant used this to store machinery. In a year or so he built a warehouse on this tract, and about three years later built another warehouse. Not long before this suit was brought he built a store building on this tract. In his letter to plaintiff written June 2, 1926, some six months before this suit was commenced, asking for a lease of this tract, he said: "About ten years ago I...