State ex rel. St. Louis-S.F. Ry. Co. v. Shain, 36712.

• Decision Date: 13 December 1939
• Docket Number: No. 36712.,36712.
• Citation: 134 S.W.2d 89
• Parties: STATE OF MISSOURI at the relation of the ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Relator, v. HOPKINS B. SHAIN, EWING C. BLAND and WILLIAM C. KEMP, Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

134 S.W.2d 89 STATE OF MISSOURI at the relation of the ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Relator,
v.
HOPKINS B. SHAIN, EWING C. BLAND and WILLIAM C. KEMP, Judges of the Kansas City Court of Appeals. No. 36712. Supreme Court of Missouri. Division One, December 13, 1939.

Certiorari.

WRIT QUASHED.

J.W. Jamison, M.J. Henderson, Thos. E. Deacy and W.M. Raines for relator.

(1) The ruling of the Court of Appeals is contrary to and in conflict with the latest controlling decisions of this court in holding that the construction of a new spur track in approximately the same location as the spur track mentioned in the written grant, under which relator acquired an easement, was an act which constituted abandonment on the part of the relator to any claim to an easement over said strip of land. St. Louis-San F. Ry. Co. v. Dillard, 43 S.W. (2d) 1034, 328 Mo. 1154; Powell v. Bowen, 279 Mo. 280, 214 S.W. 142; Hickman v. Link, 116 Mo. 123; Coates & Hopkins Realty Co. v. Kansas City Term. Ry. Co., 328 Mo. 1118, 43 S.W. (2d) 817; Stevens v. St. Louis, M.B.T. Ry. Co., 152 Mo. 212, 53 S.W. 1066; Kansas City & N.C. Railroad Co. v. Baker, 183 Mo. 312, 82 S.W. 85; State ex rel. State Highway Comm. v. Griffith, 114 S.W. (2d) 976; St. Louis-S.F. Ry. Co. v. King, 50 S.W. (2d) 94, 329 Mo. 1203; St. Joseph, St. Louis & Santa Fe Ry. Co. v. Smith, 170 Mo. 327, 70 S.W. 700. (2) The ruling of the Court of Appeals is contrary and in conflict with the latest controlling decisions of this court in holding that although the Silver King Oil & Gas Company acquired its property by lease and later by the conveyance, which instruments specifically reserve the rights of the relator to its easement, yet the Silver King Oil & Gas Company is not stopped from denying the right of relator the use of said easement and that the Silver King Oil & Gas Company is not estopped from asserting that relator had abandoned its easement. Litchfield v. Boogher, 238 Mo. 472, 124 S.W. 302; Coates & Hopkins Realty Co. v. K.C. Term. Ry. Co., 328 Mo. 1118, 43 S.W. (2d) 817; Downing v. Dinwiddie, 132 Mo. 92; Whitelaw v. Rodney, 212 Mo. 540; McDonald v. Quick, 139 Mo. 498.

Moss H. Silverforb and Chas. N. Sadler for respondents.

(1) In this proceeding the court only considers clear conflicts. State ex rel. Silverforb v. Smith, 43 S.W. (2d) 1054; State ex rel. Trachsel Motor Car Co. v. Trimble, 18 S.W. (2d) 489; State ex rel. American School of Osteopathy v. Daues, 18 S.W. (2d) 889; State ex rel. v. Haid, 30 S.W. (2d) 103; State ex rel. v. Haid, 37 S.W. (2d) 438; State ex rel. v. Trimble, 62 S.W. (2d) 758; State ex rel. v. Haid, 61 S.W. (2d) 955; State ex rel. v. Haid, 22 S.W. (2d) 1048; State ex rel. v. Allen, 128 S.W. (2d) 1041; State ex rel. v. Trimble, 20 S.W. (2d) 46; State ex rel. v. Haid, 18 S.W. (2d) 480; State ex rel. v. Trimble, 253 S.W. 1014; State ex rel. v. Cox, 19 S.W. (2d) 697. (2) The court will not look beyond the opinion of the Court of Appeals for the evidentiary facts. State ex rel. Silverforb v. Smith, 43 S.W. (2d) 1054; State ex rel. v. Trimble, 30 S.W. (2d) 374; State ex rel. v. Haid, 40 S.W. (2d) 612; State ex rel. v. Daues, 19 S.W. (2d) 703; State ex rel. v. Reynolds, 233 S.W. 221. (3) The Supreme Court is bound by the Court of Appeals conclusion as to what the facts are. State ex rel. Silverforb v. Smith, 43 S.W. (2d) 1054; State ex rel. St. L.-S.F. Ry. Co. v. Haid, 37 S.W. (2d) 438; State ex rel. v. Trimble, 30 S.W. (2d) 374; State ex rel. v. Haid, 40 S.W. (2d) 612; State ex rel. v. Daues, 19 S.W. (2d) 703. (4) The Supreme Court will not determine whether the ruling of the Court of Appeals is sound or unsound. State ex rel. Silverforb v. Smith, 43 S.W. (2d) 1054; State ex rel. Trachsel Motor Car Co. v. Trimble, 18 S.W. (2d) 489; State ex rel. v. Haid, 30 S.W. (2d) 103; State ex rel. v. Haid, 37 S.W. (2d) 438; State ex rel. v. Trimble, 62 S.W. (2d) 758; State ex rel. v. Becker, 62 S.W. (2d) 899; State ex rel. v. Haid, 61 S.W. (2d) 955; State ex rel. v. Allen, 128 S.W. (2d) 1041.

BRADLEY, C.

This cause is in certiorari to quash the judgment and opinion of the Kansas City Court of Appeals in St. Louis-San Francisco Railway Company v. Silver King Oil & Gas Co., 127 S.W. (2d) 31, wherein the Court of Appeals reversed a judgment in favor of the plaintiff in that case. [1] We are concerned only with whether or not the opinion is in conflict with the last controlling decision of this court on the points ruled. [State ex rel. Mo. Mut. Assn. v. Allen et. al., 336 Mo. 352, 78 S.W. (2d) 862; State ex rel. Mills v. Allen et al., 344 Mo. 743, 128 S.W. (2d) 1040.] Also, in certiorari to quash the judgment and opinion of a Court of Appeals, the Supreme Court will not go beyond the opinion for the facts. [State ex rel. Silverforb v. Smith et al. (Mo.), 43 S.W. (2d) 1054, l.c. 1057 and cases there cited.] However, any document referred to in the opinion may be considered the same as if set out in full. [State ex rel. Mutual Life Ins. Co. v. Shain et al., 339 Mo. 621, 98 S.W. (2d) 690; State ex rel. Talbott v. Shain, 334 Mo. 617, 66 S.W. (2d) 826.]

From the opinion we ascertain that relator claimed an easement in a strip of land twelve and one-half feet in width off the west side of lot 209 in Garfield Park addition to Kansas City, and brought suit against the Silver King Oil & Gas Company seeking a decree directing that company to remove obstructions alleged to have been placed by it on the strip...