State ex rel. Highway Comm. v. Griffith

• Decision Date: 01 April 1938
• Docket Number: No. 35174.,35174.
• Citation: 114 S.W.2d 976
• Parties: STATE OF MISSOURI at the relation of STATE HIGHWAY COMMISSION, Appellant, v. HARRY GRIFFITH ET AL., B.M. ACHTENBERG and MINNIE ACHTENBERG, Exceptors.
• Court: Missouri Supreme Court

114 S.W.2d 976

STATE OF MISSOURI at the relation of STATE HIGHWAY COMMISSION, Appellant, v. HARRY GRIFFITH ET AL., B.M. ACHTENBERG and MINNIE ACHTENBERG, Exceptors.

No. 35174.

Supreme Court of Missouri.

Division One, April 1, 1938.

Appeal from Clay Circuit Court. — Hon. Ralph F. Lozier, Judge.

REVERSED.

Louis V. Stigall for appellant.

(1) A railroad company acquiring property for right of way purposes, either through condemnation or by intention expressed in a deed, acquires only a defensible fee simple title; the reversionary interest remaining in the grantor or condemnee. Allen v. Beasley, 297 Mo. 544; Coates & Hopkins Realty Co. v. Ry. Co., 43 S.W. (2d) 823. (2) The title reverts immediately upon the abandonment of the land for the use for which it was acquired. Allen v. Beasley, 297 Mo. 544; Coates & Hopkins Realty Co. v. Ry. Co., 43 S.W. (2d) 823. (3) Whether or not the amount of the verdict is against the weight of the evidence is immaterial if plaintiff's demurrer was improperly overruled. (4) The burden is upon those claiming interest in the property in a condemnation suit to prove damages. Railroad v. Belchle, 234 Mo. 471; State ex rel. Highway Comm. v. Baumhoff, 93 S.W. (2d) 104.

Ben M. Achtenberg for respondents.

The court did not err in refusing to sustain plaintiff's demurrer offered at the close of all the testimony and in overruling plaintiff's motion for new trial based on the court's refusal to sustain the demurrer to defendants' testimony. (a) Railroads may acquire an absolute fee simple title in land. Coates & Hopkins Realty Co. v. Kansas City Term. Ry. Co., 43 S.W. (2d) 817. (b) Railroads may acquire an absolute fee simple title in their right of ways. Territory of New Mexico v. United States Trust Co., 172 U.S. 171, 19 Sup. Ct. 128; Baker v. A.T. & St. Fe Ry. Co., 122 Mo. 411; Sec. 7862, R.S. 1929. (c) Deeds before this court not voluntary grants. Gentry v. Field, 143 Mo. 410; Strong v. Whybark, 204 Mo. 348; Bobb v. Bobb, 89 Mo. 411; McConnell v. Braymer, 63 Mo. 464; Hollocher v. Hollocher, 62 Mo. 274; Chambers v. Chambers, 227 Mo. 287; Henderson v. Henderson, 13 Mo. 152. (d) Deeds before this court convey fee simple title. Sec. 3106, R.S. 1929; 8 R.C.L., p. 1103, sec. 161; 18 C.J., p. 336, sec. 335; Studdard v. Wells, 120 Mo. 29; Morrill v. Wabash, St. I, & Pac. Ry. Co., 96 Mo. 179; Chouteau v. St. Louis, 55 S.W. (2d) 300; German Evangelical, etc., Church v. Schreiber, 209 S.W. 914; Hand v. St. Louis, 158 Mo. 207; Quinn v. Pere Marquette Ry. Co., 239 N.W. 376; Johnson v. Valdosta, M. & W. Ry. Co., 150 S.E. 846; Askew v. Vicksburg, S. & P. Railroad Co., 132 So. 510; Shreve v. Norfolk, Y.W. Railroad Co., 109 Va. 706, 64 S.E. 972, 23 L.R.A. (N.S.) 771; Gilbert v. M.-K.-T. Railroad Co., 185 Fed. 102; Atlantic Coast Line Co., v. Duval County, 154 So. 331; Marland v. Gillespie, 168 Okla. 376, 33 Pac. (2d) 207; Texas & P. Ry. Co. v. Martin, 71 S.W. (2d) 867; Texas & P. Ry. Co. v. Vaughan, 73 S.W. (2d) 632; Railway Co. v. Roberts, 152 U.S. 114, 14 Sup. Ct. 496.

BRADLEY, C.

This cause is in condemnation and affects three parcels of land taken by the State for state highway purposes. The State Highway Commission and defendants, Achtenbergs, filed exceptions to the report of the commissioners appointed to assess damages. The jury found for the Achtenbergs on tract Q in the sum of $50; on tract Q3 in the sum of $10, and on tract R in the sum of $40. The State Highway Commission and the Achtenbergs filed motions for a new trial. The chief ground of complaint in the motion for new trial by the Achtenbergs was that the damages awarded were grossly inadequate and amounted to confiscation of their property. The Highway Commission claims that the Achtenbergs had no interest in the right of way taken, and the only complaint made by the commission is that the trial court erred in not sustaining its request for a directed verdict at the close of the case. The motion by the Highway Commission for a new trial was overruled, but the motion by the Achtenbergs was sustained "on the ground that the verdict of the jury is against the weight of the evidence." The Highway Commission appealed.

Hereinafter we refer to the State Highway Commission as plaintiff and to the Achtenbergs as defendants.

The three strips of right of way in question were formerly a part of the right of way of Kansas City, Clay County, and St. Joseph Railway Company, which company, for many years prior to 1932, operated an interurban railroad between Kansas City and Excelsior Springs, and between Kansas City and St. Joseph. The railway company, in 1911, acquired from the then owners and for right of way purposes, the tracts herein involved. In 1934, all the properties of the railway company were sold through bankruptcy proceedings in Kansas City and defendant, B.M. Achtenberg, was the purchaser of all of the right of way.

Tract Q, when the railroad right of way was acquired, was known as the Compton land; tract Q3 as the Endicott land, and tract R as the Murphy land. The Compton, Endicott and Murphy heirs in separate deeds, and subsequent to B.M. Achtenberg's purchase in the bankruptcy proceedings, conveyed the respective tracts or parcels to the State for State highway purposes. These deeds were obtained from the respective heirs, prior to filing condemnation proceedings.

Defendants contend that defendant, B.M. Achtenberg, by virtue of the deed to him through the bankruptcy proceedings, acquired the fee in and to the right of way of the railroad company, while on the other hand, plaintiff contends that the railroad company, by its right of way deeds in 1911, acquired nothing more than an easement, and that when the railroad company ceased to use the land for right of way purposes, the land reverted to the heirs of the grantors in the right of way deeds.

Both contentions are based on the language of the right of way deeds of Compton, Endicott and Murphy to the railroad company. These deeds are alike, except as to the names of the grantors, the dates, description and consideration.

Each of these deeds is captioned, "Missouri Warranty Deed." The granting clause is: "Grant, bargain and sell, convey and confirm unto the said party of the second part, its heirs and assigns, the following described lots, tracts or parcels of land lying, being and situate in the County of Clay and State of Missouri, to-wit: As and for a right of way for said railway." (Italics ours.) Then follows description. The habendum reads: "To have and to hold the premises aforesaid with all and singular, the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining, unto the said party of the second part and unto its heirs and assigns forever." Then follow the usual covenants of warranty in a general warranty deed.

The trial court held that defendant, B.M. Achtenberg, by his deed through the bankruptcy proceedings against the railway company, acquired an indefeasible fee interest in the tracts or parcels involved.

Section 4655, Revised Statutes 1929 (Mo. Stat. Ann., sec. 4655, p. 2072), provides, among other things, that a railroad corporation shall have power "to take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railroads, but the real estate received by voluntary grant shall be held and used for the purpose of such grant only." The part of Section 4655 quoted, was enacted by the Legislature of 1865-66 (Laws 1865-66, p. 27). The Compton, Endicott and Murphy right of way deeds to the railroad company show on their face, as appears above, that the tracts or parcels were granted for right of way purposes.

It is conceded that the tracts involved ceased to be used for right of way purposes in 1932. If the right of way deeds were voluntary, or for right of way purposes only, then it is conceded that, upon cessation of use for right of way purposes, the land would revert to the grantors or their heirs.

Two questions are presented, viz.: (1) Were the Compton, Endicott and Murphy right of way deeds voluntary within the meaning of Section 4655? and (2) Should these deeds be construed to mean that the respective tracts granted were to be "held and used" for railroad right of way purposes only?

[1] It is contended by defendants that the term voluntary as used in Section 4655 means without valuable consideration, while on the other hand, it is contended in effect by plaintiff that the term voluntary as used in the statute, is used in contradistinction to condemnation.

It was held in Coates & Hopkins Realty Co. v. Kansas City Terminal Ry. Co. et al., 328 Mo. 1118, 43 S.W. (2d) 817, that land conveyed for a valuable consideration, to a railroad company, without reference to user purpose, passed an indeterminable fee. Also, "voluntary grants" as used in Section 4655, Revised Statutes 1929, was construed in that case "to mean that a grant of land, deeded to a railroad corporation, reverts to the original grantor thereof upon abandonment, when it was conveyed without valuable consideration, or when it was conveyed to induce a railroad corporation to take a defined route." And voluntary grant of land to a railroad company was in effect defined (328 Mo. l.c. 1133, 43 S.W. (2d) l.c. 823) as a grant without a valuable consideration.

The Compton, Endicott and Murphy deeds to the railroad company were not without a valuable consideration, and if that is the test by which to determine whether a right of way deed to a railroad company is voluntary are not, then the right of way deeds concerned here were not voluntary, because they were for a valuable consideration. The result reached in the Coates & Hopkins Realty Company case, supra, that voluntary as used in Section 4655, means without a valuable consideration, was on the theory that the term "voluntary" as used in the statute has the same meaning as when that term is used with...