Summers v. Atchison, T. & SF Ry. Co.

• Decision Date: 01 October 1924
• Docket Number: No. 205.,205.
• Citation: 2 F.2d 717
• Parties: SUMMERS v. ATCHISON, T. & S. F. RY. CO.
• Court: U.S. District Court — Eastern District of Missouri

2 F.2d 717 (1924)

SUMMERS v. ATCHISON, T. & S. F. RY. CO.

No. 205.

District Court, E. D. Missouri, N. D.

October 1, 1924.

Shelton & Shelton, of Macon, Mo., for plaintiff.

George J. Mersereau, of Kansas City, Mo., and Mahan, Mahan & Fuller, of Hannibal, Mo., for defendant.

DAVIS, District Judge.

This is an action in two counts; the first to quiet title, and the second to enjoin the defendant from interfering with plaintiff's alleged title by adverse possession. The suit was originally brought in the circuit court at Macon county, Mo., where a temporary restraining order was issued. In due course, the cause was removed to the District Court of the United States for the Northern Division of the Eastern District of Missouri. The action involves the title to 4.91 acres of land located in Macon county, Mo. The title of this land passed out of the federal government in 1855 and came down by a regular chain of title to George W. Baity, in 1881, and remained in said Baity until 1887, when, by deed duly recorded, he and his wife conveyed this tract of land to the predecessor in title of the present defendant. Subsequent to this conveyance the widow of said Baity and their children in 1904, by deed duly recorded, conveyed a larger tract of land including the 4.91 acres to Thomas C. Yarde. Through the said Yarde, and other mesne conveyancor, the property acquired has come down to the plaintiff in this case. But in all of the several conveyances, it has been included as a part of a larger tract of real estate. There were no buildings or fences on the tract of ground in controversy. The owners of the adjacent property used the land with which we are here concerned. They pastured it; at times cultivated it. According to plaintiff's testimony, he and his predecessors in title have paid the taxes on this land since 1887, the time of the original conveyance to the railroad company. No tax receipts were produced at the trial; plaintiff's counsel stated that they had been lost. There was no conflict in the evidence at the hearing of the fact that plaintiff had paid the taxes, but counsel for the defendant does raise some question as to who paid the taxes in his brief. In 1922, the defendant erected a fence along the north line of the strip of ground, whereupon the plaintiff removed the fence and instituted this suit.

There seems to be two questions that must be answered in order to decide this case: First, was the land in question devoted to a public use; and, second, does the statute of limitations confirm plaintiff's title?

I. Railroads are recognized in the Constitution of Missouri as being public highways, and individuals, without distinction, are entitled to avail themselves of their facilities both as carriers of passengers and of freight. The statutes of Missouri grant to such corporations the right to condemn real estate not only for right of ways and depots, but for all other necessary purposes incident to the maintenance and operation of the road. This is the recognition of their public character.

Section 9870, R. S. Mo. 1919, provides:

"Any railroad company in this state shall have the right to take and hold all necessary ground for right of way for the extensions and branch railroads authorized to be constructed as aforesaid and for depots and side tracks and other necessary purposes, and if the title thereof cannot be secured by agreement with the owners thereof, or if from any other cause the title cannot be secured, such company may proceed to condemn the same in the same manner and with the same effect as is now provided by law for the condemnation of other lands."

Section 9877, R. S. Mo. 1919, provides, among other things:

"Any company shall have power, by themselves or agents, to enter and take from any land in the neighborhood of the line of their railroad, earth, gravel, stone, wood, water, or other material necessary for the construction and operation of said road, and also for the purpose of depositing thereon earth, stone, gravel, etc., and for the purpose of procuring water for their uses; may lay pipes, erect pumps, dams and reservoirs, and maintain and keep the same in repair, paying, if the owner of said lands and the said company can agree, the damages they shall do to said land or its appurtenances. * * *"

The exact question to be answered here does not seem to have been decided in the courts of Missouri, but there are cases which throw light on the subject. In Hannibal & St. Joseph Railroad Co. v. Totman, 149 Mo. 657, 51 S. W. 412, it was held that "a strip of land in the town of Cameron, acquired by the railroad for its right of way, depot and station grounds, was property devoted to a public use." In St. Joseph, St. Louis & Santa Fé Railway Co. v. Smith, 170 Mo. 327, 70 S. W. 700, it is stated that "real estate held for railroad stockyards and grounds lying adjacent to the right of way, is a necessary and proper appurtenance to the operation of the railroad, and is, therefore, devoted to a public use." In Omaha & St. Louis Railway Co. v. Wabash Railway Co., 108 Mo. 298, 18 S. W. 1101, it was decided that "a hotel which was purchased and run by the railroad company for an eating house to accommodate the employees of the company and passengers and others, was an incident to the operation of the road." In Railroad v. Baker, 183 Mo. 312, 82 S. W. 85, it was decided that "a plot of ground in the town of Osburn, which was designated on the plat as `reserved for depot grounds,' was likewise a dedication to public use."

In the light of what is said in these cases, there does not seem to be any doubt but that the acquiring by a railroad of property for the purpose of collecting and holding water thereon to supply its engines is likewise putting the property to public use. It is necessary and indispensable for the railroad to provide such facilities. Without them, the operation of the road would be impossible, and therefore we have no hesitancy in saying that the doctrine of the above cases is applicable to the situation that exists in this case.

But the plaintiff asserts that whatever may have been the original idea and purpose in buying the land, that the facts and circumstances in evidence show that there has been an abandonment of the primary purpose of the defendant and of the land. In order to constitute an abandonment there must be an intention to abandon it; that is, an intention to relinquish the possession of the property, without an intention to again repossess it; such intention must be followed by an actual relinquishment of possession, so that, and to the extent that the property abandoned is left free and open to be appropriated by the next comer. Hatton v. Railroad, 253 Mo. 660, 162 S. W....