University City v. Chicago, R. I. & P. Ry. Co.
| Decision Date | 03 April 1941 |
| Docket Number | 36833 |
| Parties | City of University City, a Municipal Corporation, Plaintiff, v. The Chicago, Rock Island & Pacific Railway Company et al., Defendants, John W. Forsyth, Betty Forsyth Neill, Betty Way Forsyth, William Forsyth, Julia Flanagan Plettner, Louise Flanagan Ferber, Edward P. Tesson and Ernest S. Tesson, in their own behalves and in behalf of all the heirs of Robert Forsyth, Exceptors, Appellants |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 347 Mo. 814 at 825.
Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.
Affirmed.
Boudreau & Kramer, Staunton E. Boudreau, John B. Kramer and Thos. J. Noonan for appellants.
(1) The defendant railroad, under the order of the Interstate Commerce Commission, the facts prior to said order and the proceedings herein, abandoned the right of way in suit and the same reverted to either of the other parties represented in this appeal, the heirs of John W. Forsyth et al., or the abutting owners. 1 Amer. Law Institute's Restatement of the Law of Property, sec. 53, p. 187. (2) An unabandoned right of way cannot be condemned for a street or highway without statutory authority, and either the right of way in suit was abandoned or these condemnation proceedings are illegal and void. Hannibal v. Hannibal, etc., Ry Co., 49 Mo. 480. (3) The only case involving the issue of whether a railroad's estate in its right of way is a base, qualified or determinable fee is the case of Morrill et al. v. Wabash, etc., Ry. Co., 96 Mo. 174, which involved the identical deed in suit and apparently established that it granted an estate in fee on condition subsequent. No other case decided in this State involved this issue, although some indicated that such a conditional estate in fee is held by a railroad in its right of way. Morrill v. Wabash, etc., Ry. Co., 96 Mo. 174; Boyce v. Mo. Pac. Ry. Co., 168 Mo. 589; Delaney v. Mo. Pac. Ry. Co., 168 Mo. 599; Kellogg v. Malin, 50 Mo. 500; Clevenger v. C., M. & St. P. Ry. Co., 210 S.W. 867; Allen v. Beasley, 297 Mo. 544; Hannibal & St. J. Ry. Co. v. Frowein, 163 Mo. 1; Ruddick v. St. L., K. & N.W. Railroad, 116 Mo. 33; Coates & Hopkins Realty Co. v. K. C. Ry. Co., 43 S.W.2d 817. (4) It would be contrary to the fundamental principles of the laws of real property to hold that a conveyance to a railroad for railroad purposes creates (merely because of the condition attached) a mere easement. U.S. Pipe Line Co. v. Delaware Ry. Co., 62 N. J. L. 254, 41 A. 762, 42 L. R. A. 572; New Mexico v. U.S. Trust Co., 172 U.S. 181; Denver Railroad Co. v. Pac. Ry. Co., 278 P. 22; Keener v. Union Pac. Ry. Co., 31 F. 126; M., K. & T. Ry. Co. v. Roberts, 52 U.S. 114; Western Union Telegraph Co. v. Penn. Ry. Co., 195 U.S. 570; Midland Valley Railroad Co. v. Sutter, 28 F.2d 165; Central Trust Co. of New York v. Wabash & St. P. Ry. Co., 29 F. 546; Postal Telegraph Cable Co. v. So. Ry. Co., 90 F. 32; Coates & Hopkins Realty Co. v. K. C. Ry. Co., 43 S.W.2d 817. (5) The deed in question created a base, qualified or determinable fee or estate in fee on condition subsequent. Morrill v. Wabash, etc., Ry. Co., 96 Mo. 174; 1 Amer. Law Institute's Restatement of the Law of Property, sec. 44e; U.S. Pipe Line Co. v. Delaware Ry. Co., 62 N. J. L. 254, 41 A. 765, 42 L. R. A. 572; New Mexico v. U.S. Trust Co., 172 U.S. 181; Midland Valley Railroad Co. v. Sutter, 28 F.2d 165; Central Trust Co. of New York v. Wabash & St. P. Ry. Co., 29 F. 546; Jordan v. Teaneck, 137 A. 580; Terminal Coal Co. v. Pa. Ry. Co., 291 Pa. 103, 139 A. 612; Denver Railroad Co. v. Pac. Ry. Co., 278 P. 22; Paul v. Connersville & Newcastle Ry. Co., 51 Ind. 532; Merrimack River Locks v. Boston Ry. Co., 245 Mass. 52, 139 N.E. 839; Nicoll v. N. Y. & E. Ry. Co., 12 N.Y. 121; Camden Land Co. v. West Jersey Ry. Co., 92 N. J. L. 385, 105 A. 229; In re Buffalo, 206 N.Y. 9, 99 N.E. 805; Colgate v. N. Y. Cent. Ry. Co., 100 N.Y.S. 650; Buffalo Pipe Line Co. v. New York Ry. Co., 10 Abbott N. C. 107; Dobby v. Wilman, 278 N.W. 694; Tebow v. Dougherty, 205 Mo. 322. (6) The deed of Robert Forsyth, having created a base, qualified or determinable fee or estate in fee on condition subsequent, and the right of way of lands having been abandoned by defendant railroad, the title to said lands has reverted to John W. Forsyth et al., who represent all the heirs of Robert Forsyth at the time of said abandonment, and the judgment is for the wrong party. 21 C. J., pp. 922, 1017, secs. 18, 180; Nicoll v. New York & Erie Ry. Co., 12 N.Y. 132; U.S. Pipe Line Co. v. Delaware Ry. Co., 62 N. J. L. 254, 41 A. 762, 42 L. R. A. 572; North v. Graham, 235 Ill. 178, 85 N.E. 267, 18 L. R. A. 624.
Marvin E. Boisseau for respondent.
(1) When a railroad company acquires land for right of way purposes, the estate which it takes is an easement only, the fee remaining in the grantor. This is true whether the deed is absolute in form, or is limited to a right of way only. Kellog v. Malin, 50 Mo. 496; Venable v. Wabash Western Ry. Co., 112 Mo. 103; Union Depot Co. v. Frederick, 117 Mo. 138, 21 S.W. 1118; Boyce v. Mo. Pac. Ry. Co., 168 Mo. 583, 68 S.W. 920; St. Louis, I. M. & S. Ry. Co. v. Cape Girardeau Bell Tel. Co., 114 S.W. 586; Kansas City So. Ry. Co. v. Sandlin, 158 S.W. 857; Allen v. Beasley, 297 Mo. 544, 249 S.W. 387; State ex rel. v. Griffith, 114 S.W.2d 976. (2) The deed in question from Robert Forsyth expressly limits the estate conveyed to that of an easement only. It refers to the quantum of the estate conveyed as a "right of way over and upon his land" and also as a "license." This can only be an easement. 3 Bouvier's Law Dictionary, p. 3444; 51 C. J., p. 539, sec. 203; State ex rel. v. Griffith, 114 S.W.2d 976; Right of Way Oil Co. v. Gladys City Mfg. Co., 157 S.W. 737; Roxana Petroleum Co. v. Jarvis, 273 P. 661; Nashville Ry. Co. v. Bell, 39 S.W.2d 1026; Quinn v. Pere Marquette Ry. Co., 239 N.W. 376; West v. Maryland Gas Transmission Corp., 159 A. 758. (3) It is contrary to the declared public policy of this State to construe the deed of Robert Forsyth as contended by appellants. The fee in gores or strips of land should not remain in remote dedicators. Snoddy v. Bolen, 122 Mo. 479, 25 S.W. 932; McDonald v. Frisco Ry. Co., 185 S.W. 214; Betz v. Tel. Co., 121 Mo.App. 473; Baker v. St. Louis, 7 Mo.App. 429, affirmed 75 Mo. 671; Center Bridge Co. v. Wheeler & Howes Co., 86 A. 11; Wright v. Willoughby, 60 S.W. 971; Foster v. Foster, 62 S.E. 321; Boney v. Cornwell, 109 S.W. 271; Richardson v. Palmer, 30 N.H. 212; Church v. Stiles, 10 A. 674; Maynard v. Weeks, 41 Vt. 617; Rio Bravo Oil Co. v. Weed, 50 S.W.2d 1080; Roxana Petroleum Corp. v. Sutter, 28 F. 159; Rice v. Coal Co., 186 Pa. 49; Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 P. 661. (4) Any estate or interest in land, however contingent, may be conveyed. R. S. 1929, sec. 3014; Kay v. Politte, 129 S.W.2d 863; Brown v. Fulkerson, 125 Mo. 500, 28 S.W. 632; Bradley v. Goff, 243 Mo. 95, 147 S.W. 1012. (5) Conditions subsequent are not favored in the law and will be held to be nonexistent, if possible. Catron v. Scarritt Institute, 175 S.W. 571; Studdard v. Wells, 25 S.W. 201. And any attempt to alienate or convey a possibility of reverter destroys it. 23 R. C. L., p. 1101; 60 L. R. A. 764. (6) One who has a possibility of reverter for condition broken cannot dedicate the land, and has no such interest as will entitle him to damages on condemnation of the property for a public use. 23 R. C. L. 1103; Lyford v. Laconia, 75 N.H. 220, 72 A. 1085.
The appellants are the lineal heirs of Robert Forsyth, deceased, existent when the condemnation suit involved on this appeal was brought and tried in 1938. In 1871 by a deed recorded in book 442, p. 55, Recorder's office, St. Louis, he conveyed certain strips or parcels out of his suburban residence tract just west of St. Louis to the predecessor of the defendant C., R. I. & P. Ry. Co., for use as railroad right of way. He died two years later, in 1873, leaving a will by which he divided said residence tract into parcels and devised them severally to his children. The title to certain of these portions which included the right of way strips aforesaid has, by mesne conveyances, become vested in the present owners, divers persons and corporations.
Traffic on the railroad line built over said right of way has greatly diminished during recent years. Certain sections of the track have been abandoned and some parts taken up. The track on the right of way strips here involved is still in place, but is used only for freight switching service to two industries, and the defendant railroad has obtained authority from the Interstate Commerce Commission to abandon it, also. Appellants contend all this, plus the railroad's acquiescence in the condemnation suit already mentioned, is tantamount to complete abandonment of the line.
That suit was instituted by the respondent City of University City in 1938 to condemn the aforesaid right of way land for a public street. The respondent railroad, its trustees, bond and note holders, the owners of the abutting land and the appellant heirs of Robert Forsyth all were joined as defendants. Appellants say in their brief that none of the abutting owners appeared or pleaded to the petition in the condemnation suit. But they further state that the (appellants) had pending at the time a separate action for the partition of the same land, in which they obtained an order authorizing and directing them to appear in the condemnation suit representing all the heirs of Robert Forsyth, deceased, and all other persons interested in the land to be condemned. Appellants assert that by virtue of that order in the partition suit they represented the abutting owners in the condemnation...
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