Stone v. Kansas City & Westport Belt Railway Co.

• Decision Date: 14 July 1914
• Citation: 169 S.W. 88,261 Mo. 61
• Parties: W. B. STONE v. KANSAS CITY AND WESTPORT BELT RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

169 S.W. 88

261 Mo. 61

W. B. STONE v. KANSAS CITY AND WESTPORT BELT RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 14, 1914

Appeal from Jackson Circuit Court. -- Hon. E. E. Porterfield, Judge.

Affirmed.

John H Lucas and Halbert H. McCluer for appellant.

(1) The court erred in not declaring as a matter of law that respondent was not entitled to recover. (a) There was no showing that the United States had ever parted with its title to the land. Sec. 4 of the 5th Clause, Act of Admission Stats. 1909, p. 38; Sec. 6316, R. S. 1909; Stephenson v Stephenson, 71 Mo. 127. (b) The trust deed from Campbell to Swearingen did not sufficiently describe the land. (c) The trustee's deed under the above deed did not sufficiently describe the land. (d) The sale by substitute trustee and assignee in bankruptcy was not shown to have been made with authority and was hence invalid. In re Snedaker, 3 B. R. 155; In re People's Mail Steamship Co., 2 B. R. 170; Davis v. Carpenter, 2 B. R. 125; Jones v. Leach et al., 1 B. R. 165; In re Vogel, 2 B. R. 138; Lee v. Franklin, 3 B. R. 53; In re Rosenberg, 3 B. R. 33; In re High, 3 B. R. 46. (e) In the absence of an agreement to the contrary the taking of the land for the purpose of a right of way was an appropriation of a right of way of the usual width, being the amount allowed by law. Hargis v. Railroad, 100 Mo. 210; Campbell v. Railroad, 110 Ind. 490; Railroad v. Cochrane, 3 Lea (Tenn.), 478; Railroad v. McReynolds, 48 S.W. 253. (2) Adverse user gave the appellant a prescriptive right and the court erred in not so deciding. Boyce v. Railroad, 168 Mo. 583; Railroad v. Michener, 117 Ind. 462; Prather v. Telegraph Co., 89 Ind. 501; Schultz v. Lindell, 30 Mo. 310; Johnson v. Prewett, 32 Mo. 553; Powell v. Davis, 54 Mo. 315; Callahan v. Davis, 103 Mo. 444; Ragan v. Railroad, 144 Mo. 636. (3) The Perkins suit was not an adjudication of this matter, and the conversation about same cannot aid respondent. Stumpe v. Kopp, 201 Mo. 423; Lemmons v. McKinley, 162 Mo. 530. (4) Respondent was precluded from a recovery by failure to record the deed to Perkins until long after purchase and improvement by appellant's grantor. (5) Appellant's rights have not been lost by abandonment. Railroad v. Railroad, 129 Mo. 62; 1 Am. & Eng. Ency. Law, p. 1; Scarritt v. Railroad, 148 Mo. 683; Constitution, art. 12, sec. 14; State v. Railroad, 239 Mo. 234. (6) The court erred in admitting each of the following items of evidence. (a) Deed from substitute trustee and assignee in bankruptcy. (b) Appointment of substitute trustee. (c) Evidence about claims made in the Ragan case. (d) Evidence as to claim in the Ragan case and instruction asked in that case, and in not striking out that evidence. (e) Refusing to strike out exhibits 6, 15 and 18, and each of them as requested by appellant. (f) Exhibit 41, being the amended petition in the Ragan case and exhibit 42 being disclaimer. (g) Petition, summons and judgment in the suit of Perkins v. Appellant et al. (h) Evidence of N. F. Heitman about what was said in settlement of the Perkins case.

McCune, Harding, Brown & Murphy and Spencer F. Harris for respondent.

(1) The description in the deed of trust from Campbell to Swearingen is sufficient. Loyd v. Oates, 143 Ala. 433; McAllister v. Honea, 71 Miss. 259; Waugh v. Richardson, 30 N.C. 470; Henry v. Whitaker, 82 Tex. 5; Cornwell v. Thurston, 59 Mo. 156; Frank v. Meyer, 97 Ala. 437; Rainwater v. Stevens, 15 Mo.App. 544. (2) The description in the trustee's deed is good. (3) The sale by trustee and assignee in bankruptcy is good. The law presumes the necessary orders were procured. Rockwell v. Brown, 54 N.Y. 210; Ivy v. Yancey, 129 Mo. 509. (4) There is no presumption in the absence of a license to enter, that the railroad occupied a right of way to the full extent allowed by law. Railroad v. Rickards, 38 Neb. 847. (5) The original right of way, if any was ever obtained, was never occupied and was abandoned long prior to 1887. Roanoke v. Railroad, 108 Mo. 50. (6) There was not sufficient showing of adverse possession to vest title in appellant. Jones on Easements, sec. 857; Herbert v. Merrifield, 133 Mo. 270; Elliott on Railroads (2 Ed.), sec. 948; Railroad v. Galt, 133 Ill. 670. (7) The deed from the Cases to Kansas City, Memphis & Mobile Ry. Co., being foreclosed, was not color of title when possession was taken in 1887. Jones on Easements, sec. 857; Wier v. Marsh, 21 Tex. 97; Choateau v. Riddle, 110 Mo. 366; Snyder v. Railroad, 112 Mo. 540. (8) The Case deed cannot constitute color of title as possession was not taken by the first taker under such deed. Norfleet v. Hutchings, 68 Mo. 598. (9) Where holder of legal title is in possession of whole tract, and claimant under color of title deed enters, such claimant can only acquire title by adverse possession to part actually occupied. Ozark Plateau v. Hayes, 105 Mo. 151; Bradley v. West, 60 Mo. 40; Leefer v. Baker, 68 Mo. 450; Lynde v. Williams, 68 Mo. 369. (10) Right of way deed over lot 104 is no presumption of intent to convey right of way across lot 101. Railroad v. Rickards, 38 Neb. 847. (11) The case brought by Stephen Perkins settled all questions as to the width of the right of way. Bradley v. West, 60 Mo. 69. (12) The failure to record the trustee's deed, cannot affect respondent's right, as deed of trust under which sale was made was of record before the Case deed was executed.

ROY, C. Williams, C., concurs.

OPINION

ROY, C.

This is a proceeding to quiet title to real estate. There was a judgment for plaintiff from which defendant has appealed.

The petition was filed September 26, 1908, and contains the following: "Plaintiff for his cause of action against said defendants states that he is the owner of all of lots 101 and 104 in Campbell's Addition to the town of Westport, now a part of Kansas City, Jackson county, Missouri, except a right of way over and across said lots, extending for a distance of ten feet on each side of the center line of the present railroad now located over and across said property. Plaintiff further states that defendants, Kansas City and Westport Belt Railway Company and the Metropolitan Street Railway Company claim an interest in and to a part of said property adverse to that of plaintiff, the part claimed by said defendants, being a strip of ground over and across said lots, extending fifty feet on each side of the center line of said railroad." Then follows the usual prayer for relief in such cases.

The answer contains the following: "Comes now the Kansas City & Westport Belt Railway Company, and for its separate answer to the petition of the plaintiff filed herein states that it is now, and has been for thirty years or more, the owner of the easement over and upon, and in the possession of, the property described in plaintiff's petition, to-wit: All of lots 101 and 104, Campbell's Addition to the town of Westport, now a part of Kansas City, Jackson county, Missouri. Wherefore defendant prays the court to enter a decree herein declaring this defendant to be the owner of the easement referred to herein over said lots, and further declare that plaintiff has no right, title or interest in or to said property, and for its costs herein expended."

The reply was as follows:

"Now comes plaintiff and for reply to the answer filed herein by defendant Kansas City & Westport Belt Railway Company denies that said defendant is in possession of or entitled to any right of way or easement over the land described in plaintiff's petition, except the right of way in such petition described, and denies that defendant has been in possession of any right of way over said land except the right of way described in plaintiff's petition, for a period of thirty years or for any other period of time.

"Plaintiff for further reply to said answer says that if said defendant or any person or corporation under whom it claims ever had any right of way over and across said land, except the right of way described in plaintiff's petition, it or they have long since been lost and extinguished by abandonment.

"Plaintiff for further reply to said answer says that all the rights of said defendant Kansas City & Westport Belt Railway Company over and across said property was fixed and determined by a judgment of the circuit court of Jackson county, Missouri, at Kansas City, in an action wherein Sophia Perkins, John S. Perkins and Robert Perkins, under whom plaintiff claims title to the property described in plaintiff's petition, were plaintiffs, and the Kansas City, Osceola & Southern Ry. Co., John I. Blair, DeWitt C. Blair, C. Ledyard Blair, Clarence B. Mitchell, Henry Pfeiffer and said defendant Kansas City & Westport Belt Railway Company, were defendants, in which judgment the right of said defendant to an easement or right of way over and across said property was fixed and determined and such right of way established as described in plaintiff's petition. Wherefore plaintiff asks judgment as in his petition prayed."

On April 23, 1868, Theodore S. and Oliver Case, having color of title to said lots 101 and 104, and being in possession thereof, executed a deed of trust on the lots to George W. Doggett as trustee to secure the payment of a debt to Stephen Perkins, with the usual provisions for sale by trustee in case of default, but there was no provision for a sale by a substitute trustee. It was acknowledged, and recorded on April 29, 1868.

The plaintiff read in evidence an entry in the records of the circuit court of Jackson county, dated October 31, 1874, as follows:

"This day comes Stephen Perkins, by his attorney, and presents his petition, sworn to, stating among other things that he is the beneficiary or cestui que trust in a certain...