Wabash Ry. Co. v. Chauvin

• Decision Date: 31 October 1940
• Docket Number: 36628
• Citation: 144 S.W.2d 110,346 Mo. 950
• Parties: Wabash Railway Company, Appellant, v. Frances Chauvin et al
• Court: Missouri Supreme Court

144 S.W.2d 110

346 Mo. 950

Wabash Railway Company, Appellant, v. Frances Chauvin et al

No. 36628

Supreme Court of Missouri

October 31, 1940

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Affirmed.

N S. Brown, R. B. Elster and A. E. L. Gardner for appellant.

(1) The North Missouri Railroad Company, plaintiff's predecessor in title, acquired a fee-simple title to the property in controversy by the decrees in its condemnation suits instituted prior to 1870, by the terms of which decrees said North Missouri Railroad Company was required and did pay to the owners of said land a valuable consideration; and such fee-simple title is well vested in the Wabash Railway Company, appellant herein, as the successor to said North Missouri Railroad Company. Coates & Hopkins Realty Co. v Kansas Term. Ry. Co., 328 Mo. 1118, 43 S.W.2d 817; Secs. 4555, 4655, R. S. 1929; Laws 1865-6, p. 27; State ex rel. State Highway Comm. v. Griffith, 114 S.W.2d 978. (2) The provisions of the Constitution adopted in 1875 have no retrospective effect. State ex rel. Harrison v. Frazier, 98 Mo. 426; Christine v. Luyties, 280 Mo. 416; State ex rel. Wabash Ry. Co. v. Pub. Serv. Comm., 317 Mo. 172.

Louis V. Stigall and Ralph M. Eubanks for respondents.

(1) Land acquired by condemnation for a railroad right of way reverted to the heirs of the owners who were condemned upon abandonment by the company. Laws 1850-51, p. 483; Laws 1855, pp. 232, 233; Merriwether v. Love, 167 Mo. 514; R. S. 1845, p. 232; Watson Seminary v. County Court of Pike County, 149 Mo. 57; Gregg v. Granby Mining, etc., Co., 164 Mo. 616; Kellogg v. Malin, 50 Mo. 496; State ex rel. v. Cape Girardeau & Jackson Gravel Road Co., 207 Mo. 85; Allen v. Beasley, 297 Mo. 544; Coates & Hopkins Realty Co. v. K. C. Term. Ry. Co., 328 Mo. 118, 43 S.W.2d 817; State ex rel. v. Griffith, 114 S.W.2d 976, 328 Mo. 118. (2) The State Highway Commission having acquired by condemnation and by deeds the interests of the heirs of those originally condemned by the railway company became vested with an easement for highway purposes in the described portion of the abandoned railway right of way. State ex rel. v. Griffith, 114 S.W.2d 976, 328 Mo. 1118.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This in an action to try and determine title. Plaintiff claims fee simple title under condemnation prior to the adoption of our Constitution of 1875. Defendant State Highway Commission answered claiming title to part of the land and affirmatively seeking determination of title. Defendant Emmons (one of the heirs of the original owners Chauvin and Ham) answered by general denial. The court adjudged that title to the land claimed by the Commission was vested in it as "an easement for state highway purposes;" that the other defendants (Chauvin and Ham heirs) were "vested with fee simple title" in all the land "subject to the easement for state highway purposes" in the part used therefor; and that "plaintiff has no right, claim or interest . . . in any of the real estate." Plaintiff has appealed from this judgment.

The whole tract in question was used by plaintiff as a part of its right of way for many years prior to 1936. Thereafter all tracks were removed from it, and it was abandoned for railroad right of way purposes, when plaintiff built a new bridge over the Missouri River at another location. Plaintiff's predecessor, The North Missouri Railroad Company, began a condemnation suit against Pelagie Chauvin et al. in 1857, for a strip of land 300 feet wide and about two miles long. The company obtained a decree which required the payment of $ 6400, "as the amount of damages which will be done to the land of defendants and the improvements thereon, after taking into consideration the value of said land and the advantages and disadvantages of the railroad to the tract or lot of which the same forms a part." (This amount was fixed by agreement.) The judgment further recited "that fee simple title be vested in The North Missouri Railroad Company aforesaid to the land described." The rest of the land involved herein, a triangular tract of 15.96 acres north of the first strip, was condemned by suit in 1870 against Joseph Ham et al. for approaches to the original railroad bridge over the Missouri River. The decree in that case required payment of damages of $ 1436.40 to Ham and $ 899.60 to others. The petition in that case alleged the incorporation of the company by the act of 1851, also stated that this act had been amended by later acts of January 7, 1853, and December 12, 1855, and prayed proceedings "in pursuance of the above recited acts, and of the general act of 1855 entitled an act to authorize the formation of Railroad Associations and to regulate the same." This decree also recited "that fee simple title to the land condemned for the use of said Railroad . . . be and the same is hereby vested in said Railroad forever." In September, 1937, after its abandonment by plaintiff, the State Highway Commission obtained judgment in its condemnation suit against the Chauvin and Ham heirs (it had right of way quitclaim deeds from many of them) for the use of part of both tracts for use for state highway purposes. Plaintiff was not a party to that suit. Thereafter, in December, 1937, plaintiff commenced this suit claiming the title in fee simple to all of both tracts.

The question for decision is whether plaintiff's predecessor acquired the title absolutely in fee simple, by these condemnation proceedings, so that there would be no reverter to the heirs of the original owners by abandonment of the tract for railroad purposes. It is not contended that this tract ever had or could have any use for such purposes other than for right of way. It is, of course, no longer possible for a railroad to acquire such a fee title by condemnation. [Constitution of Missouri, Art. 2, Sec. 21; see also Art. 12, Sec. 14; Coates & Hopkins Realty Co. v. Kansas City Terminal Ry. Co., 328 Mo. 1118, 43 S.W.2d 817; State ex rel. State Highway Comm. v. Griffith, 342 Mo. 229, 114 S.W.2d 976.] It is conceded, however, that plaintiff has whatever title its predecessor had. This question must, of course, be determined by the statutes then in force because there was then no constitutional prohibition against the enactment of condemnation statutes which would authorize the vesting of fee simple title.

The North Missouri Railroad Company was incorporated by a special act of the Legislature in 1851. (Laws of Mo. 1850-51, p 483.) There was in effect at that time a statute (R. S. Mo. 1845, p. 232, sec. 7, chap. 34) providing: "The charter of every corporation that shall hereafter be granted by the Legislature, shall be subject to alteration, suspension, and repeal, in the discretion of the Legislature." The Act of 1851 (sec. 1) authorized the company to "take, hold, use, possess and enjoy the fee simple or other title in and to any real estate" and to "sell, convey, pledge, mortgage or dispose of the same." The company was authorized (sec. 7) to "construct a railroad from the City of St. Charles, . . . passing up the divide between the tributaries of the Mississippi and Missouri Rivers . . . in the direction of Fort Des Moines (Iowa);" and "for that purpose may hold a strip of land not exceeding one hundred feet in width." (Wider "in passing hills and valleys, etc.") The company was also authorized (sec. 8) "to take voluntary relinquishments of right of way for said road;" and where this could not be done to commence condemnation (sec. 9) in circuit court. In fixing the damages in such proceedings, the court's appraisers were required (sec. 9) to "take into consideration the value of the land and the advantages and disadvantages of the...