William Brown Estate Company v. Wayne County

• Decision Date: 25 June 1894
• Citation: 27 S.W. 322,123 Mo. 464
• Parties: William Brown Estate Company, Appellant, v. Wayne County
• Court: Missouri Supreme Court

27 S.W. 322

123 Mo. 464

William Brown Estate Company, Appellant, v. Wayne County

Supreme Court of Missouri

June 25, 1894

Appeal from Wayne Circuit Court.

Affirmed.

M. R Smith and Wm. Carter for appellant.

(1) Wayne county, by its contract, and performance thereof by the railway company, and by the acts and conduct of its officers relating to such contract and its performance, and to their inducing and encouraging the railway company to change its first and adopted route through that county, to a second and more difficult route, is, by reason of the aforesaid contract and its performance and the acts and conduct of its officers as aforesaid, estopped from claiming that such contract is invalid and void. Dillon on Mun. Corp. [4 Ed.], sec. 459, p 533, and note 2; Wayne County v. Detroit, 17 Mich 390; 2 Herman on Estoppel, p. 1319; United States v. Hodsen, 10 Wall. 395; Railroad v. Marion County, 36 Mo. 305; Union Depot Co. v. St. Louis, 76 Mo. 393. (2) The decision rendered in the State Board of Education case, 98 Mo. 362 and 368, holding the contract made between the railway company and Wayne county to be valid and binding upon the defendant, Wayne county, was right and was the law, and was in harmony with the former opinions of the supreme court in the construction of that provision of the state constitution and swamp land laws involved in that case, and afterward involved in the Hatten-Railway case. Long v. Long, 79 Mo. 656; Mills v. Railroad, 107 U.S. 557; Boon v. Bowers, 30 Miss. 256; Hollingshead v. Van Glahn, 4 Minn. 190; Butler v. Van Wyck, 1 Hill, 459; Hardigree v. Mitchens, 51 Ala. 151; Railroad v. Marion County, 36 Mo. 305. (3) The contract being valid by the laws of the state at the time that plaintiff bought the land in question, and having been so held by the supreme court of the state, and the plaintiff relying upon the validity of the contract in purchasing the land, its validity and obligation can not be impaired by a decision of the same appellate court, by its altering its construction of the same provision of the state constitution and swamp land statutes that it construed when holding said contract as valid and binding. Long v. Long, 79 Mo. 656; Ohio L. J. Co. v. Debolt, 16 How. (U.S.) 432; Taylor v. Ypsilanti, 105 U.S. 71; City v. Lamson, 9 Wall. 485; Olcott v. Supervisors, 16 Wall. 678; Douglass v. Pike County, 101 U.S. 686; Gelpcke v. Dubuque, 1 Wall. 206; State ex rel. v. Railroad, 85 Mo. 282; Fairfield v. Gallatin County, 100 U.S. 47; Burgess v. Seligman, 107 U.S. 20; Ray v. Gas Co., 20 A. 1067; State ex rel. v. Miller, 66 Mo. 342.

Dinning & Byrns with John H. Raney for respondent.

(1) The issues made in the board of education and the Wayne county case are not the same, nor are the parties the same. Judgments in personam conclude only parties to the record and their privies. Bigelow on Estoppel, sec. 59; Quigley v. Bank, 80 Mo. 290; Lyons v. Murray, 95 Mo. 23; Henry v. Woods, 77 Mo. 277. (2) The land in controversy is the absolute property of Wayne county, and it holds the same for the purposes designated in the law, and if sold, it must be done for the purposes and in the manner pointed out by the law concerning swamp lands. Nor had the said railway company power to make a contract to drain and reclaim swamp lands. Const. Mo. sec. 7, art. 12; Land v. Coffman, 50 Mo. 252; R. S. Mo. 1889, sec. 2543; R. S. 1879, sec. 765; Pearce v. Railroad, 21 Howard, 441; Bank v. Mathews, 98 U.S. 621; Hitchcock v. Galveston, 96 U.S. 341; Police Jury v. Brittan, 15 Wall. 566; Mayor v. Ray, 19 Wall. 468; Angell & Ames on Corp., sec. 256; Thomas v. Railroad, 101 U.S. 71. (3) The county court of Wayne county in disposing of this land, is but the agent of said county, with its powers limited and defined by law, and, when it steps outside, its acts are void; nor can the county be estopped from asserting the illegality of the acts of its agents in the premises. R. S. 1879, sec. 6154; State ex rel. v. County Court, 51 Mo. 84; Sturgeon v. Hampton, 88 Mo. 203; State v. Bank, 45 Mo. 528; Story on Agency, sec. 165; Dennings v. Smith, 2 Johns. Ch. 36; Baltimore v. Reynolds, 2 Md. 1; State v. Hastings, 10 Wis. 518; Hull v. Marshall County, 12 Iowa 142; Delafield v. State, 26 Wend. 192; Brady v. City, 20 N.Y. 312; People v. Bank, 24 Wend. 431; The Floyd Acceptances, 7 Wall. 166; Heidelberg v. St. Francois County, 100 Mo. 69.

OPINION

In Banc

Brace J.

This is an appeal from the judgment of the circuit court of Wayne county sustaining a demurrer to the plaintiff's petition, the substance of which is as follows: That on the fourteenth of March, 1882, the said county of Wayne and the Cape Girardeau & Southwestern Railway Company entered into the following contract in writing and of record, to wit:

"Whereas the Cape Girardeau Southwestern Railway Company has this day bought all of the remaining and unsold swamp and overflowed lands belonging to Wayne county, State of Missouri, for the price and sum of $ 1.25 per acre, the total amount of acres of yet unsold land being in the aggregate, as near as can be ascertained, nine thousand, five hundred acres, and the aggregate price therefor $ 11,375.

"And whereas the said county of Wayne has caused a patent or deed to be made and executed to the said Cape Girardeau Southwestern Railway Company for said swamp and overflowed land, but which said patent or deed has been placed in the hands of James F. Hatten as an escrow, and is to be delivered to said railway company when it shall have paid for said land, as in this contract hereinafter fully and particularly set out.

"And, whereas said railway proposes to do certain work, to drain, reclaim and protect said land from the overflows of the St. Francois and Castor rivers for the price and sum of $ 11,875, and which is a low charge for said work; and, whereas said proposed work will open up to settlement and cultivation a large portion of the southern part of this county, now practically of no value, and also promote the health of said county by a drainage of said lands: Now, therefore, in consideration of said premises, and other valuable considerations, this contract, entered into between the said county of Wayne by order of its county court, duly entered of record at the February special term, or adjourned term, and the Cape Girardeau Southwestern Railway Co.

"Witnesseth, that the said county of Wayne agrees to pay said railway company the sum of $ 11,875, said sum being the price of nine thousand, five hundred acres of swamp land sold to said railway company at $ 1.25 an acre, and a deed or patent to which said lands has been made and executed by said county of Wayne this day and delivered to James F. Hatten as an escrow, and to be by him delivered to said railway company when said railway company shall have fully performed and done the work hereinafter to be specified, and which said deed or patent shall be in full and complete payment for, and on account of said work, without any other or further demand of payment for, or in that behalf; and said railway company expressly covenants that it will not make any reclamation against said county for any defect or imperfection of title hereby conveyed, or any part thereof. And said Cape Girardeau Southwestern Railway Company contracts, agrees and undertakes, in consideration of said sum of $ 11,875, so to be paid as aforesaid set out:

"1. To erect, build and maintain a levee from some point on the boundary line, on the east side of said Wayne county, and in township 27, to be selected by it, the said railway company, a levee or dam across that part of Wayne county, known as Mingo swamp, to the high land on the west side of said swamp, to such point on the opposite side as said railway company may deem best suited in that behalf -- said levee so erected to have a top or crown of not less than twelve feet, and a base to be in proportion; and, further, said railway company agrees to open continuous ditches along said levee, along both sides, if necessary, to drain said land. It is, however, distinctly understood that the said railway company, if it shall deem it advisable, may build trestle, or drive piling or build bridges, at any point or points along said levee, where it shall be deemed advisable by it to do so, and that the said county of Wayne will not object or except to the fact that the said levee is not a complete earth embankment but on the other hand the said railway company expressly agrees to drain the surface water when necessary into said places where it may have erected said trestle work, piling or bridging. And it is distinctly understood that it is discretionary with said railway where it may wish to erect and maintain said trestle, piling or bridging.

"2. Said railway company agrees that it will do said work within two years from the date of this contract, and also that within said time, in order to secure the permanency of such levee or work, it will build and operate upon said levee, so thrown up and built by it, a railway, and to extend said railway in a continuous line through said township 27, in Wayne county to some eligible point on the St. Francois river in said township.

"3. And said railway company further agrees to cut down the timber on said line selected by it one hundred feet wide across said swamp to the county line.

"4. And said railway company covenants that if it shall extend its line in a westerly direction, that it will so extend the same through township 27 in Wayne county.

"5. And it is further agreed mutually by said parties that if the said railway company shall not, within two years from date build said levee and extend its railway to the St. Francois river, in township 27, in order to secure its permanency across the same, that the said...