Wilson v. Beckwith

• Decision Date: 29 June 1897
• Citation: 41 S.W. 985,140 Mo. 359
• Parties: WILSON v. BECKWITH.
• Court: Missouri Supreme Court

41 S.W. 985

140 Mo. 359

WILSON v. BECKWITH.

Supreme Court of Missouri.

June 29, 1897.

STATE DECISIS — LIKE CASES — PUBLIC LANDS — RAILROAD GRANTS — CONSTRUCTION.

1. The supreme court may reconsider and overrule an opinion announced on a former appeal respecting title to real property, especially where vast property rights are involved, and where it is improbable that many titles were acquired on the strength of the former opinion.

2. Causes in ejectment are like cases where, in all of them, one of the parties claims land outside the right of way of a railroad company under foreclosure of a statutory mortgage created by Laws 1856-57, p. 85, providing that bonds issued by several railroad companies should constitute a "mortgage upon the road and property of the several companies"; and where in one of such cases it has been decided that the word "property" includes such outside lands, the doctrine of stare decisis may be invoked on the trial of the other cases.

3. 10 Stat. 155, declared that "there be and is hereby granted" to the state a right of way for a railroad, and alternate sections, which could be sold only for the purpose of aiding in making a railroad, and prohibited the sale of more than 120 sections until after the governor certified that 20 miles of road had been completed, when a like number might be sold, and so on until the road was completed, and provided for the forfeiture of unsold lands if the road was not completed in 10 years. Held, that the grant was in præsenti, and hence the state had absolute power to sell lands acquired thereunder.

4. It was competent for a railroad company, to whom the state by Acts 1854, p. 314, granted such lands, subject to the rights reserved by the United States in its grant, to mortgage the alternate sections to the state on its guarantying bonds issued to raise money to construct the road.

McFarland and Brace, JJ., dissenting.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

In banc. Ejectment by Florence A. Wilson, by next friend, against Thomas Beckwith. From a judgment for plaintiff, defendant appeals. Reversed.

Martin L. Clardy, for appellant. H. J. Cantwell and A. N. Edwards, for respondent.

GANTT, J.

This is an action of ejectment for the possession of 40 acres of land, the N. W. ¼ of the S. E. ¼ of section 10, township 26, range 16, situate in Mississippi county, in this state. The action was originally commenced in said county, and a change of venue awarded to the city of St. Louis. This is the second appeal in the cause to this court. The defendant recovered judgment on the first trial in the circuit court of St. Louis, and that judgment was reversed, and the cause remanded, by division No. 1 of this court. The opinion then rendered will be found in 117 Mo. 61, 22 S. W. 639. On the last trial plaintiff recovered, and defendant appealed. As was said by Black, J., on the former appeal, the importance of the questions involved demand a clear and full statement of the facts. The 40 acres directly involved in this appeal constitute but an insignificant part of the large domain the title to which will be affected by our decision. The essential facts are as follows: On the 9th of February, 1853, congress passed an act (10 Stat. 155) granting to the states of Arkansas and Missouri a right of way through the public lands for a railroad from a point on the Mississippi river opposite the mouth of the Ohio, to Fulton, on the Texas boundary, by the way of Little Rock; also granting to said states, respectively, every alternate section of land, designated by even numbers, for six sections in width, on each side of the road, "for the purpose of aiding in making the railroad and branches aforesaid," and providing that the legislature might dispose of the lands "for the purposes aforesaid, and no other." Section 5 provides: "That the lands hereby granted to said states shall be disposed of by said states only in the manner following: that is to say, that a quantity of land not exceeding one hundred and twenty sections, and included within a continuous length of twenty miles of said road, may be sold; and when the governors of said state or states, shall certify to the secretary of the interior that twenty continuous miles of said road is completed, then another like quantity of land hereby granted may be sold, and so from time to time, until said road is completed, and if said road is not completed within ten years, no further sales shall be made, and the land unsold, shall revert to the United States." On the 20th of February, 1855, the legislature of this state passed an act (Acts 1854, p. 314) granting to the Cairo & Fulton Railroad Company, a corporation organized under the laws of this state, the lands granted to this state by the act of congress aforementioned, "for the uses and purposes, and subject to the conditions, reversion, and provisions set forth in said act of congress and this act." The act contains the following section: "Sec. 5. For the purpose of raising funds from time to time, for the construction of the said railroad, the said company may sell the said lands in the manner provided for by the said act of congress, and may issue their bonds in such sums as they may deem proper, at rates of interest not exceeding seven per cent. per annum, payable semiannually, and the principal of said bonds, payable at such time and place as they may designate, and may secure the payment of said bonds by mortgage of said lands, or any part thereof, to be executed by said company, and may make the said bonds convertible into land or stock of the company within such periods as they may prescribe: provided, further that nothing in this act contained shall be construed to authorize said company to sell, dispose of, or apply the said lands, or the proceeds thereof, in any other manner, or to any other purpose, than as required and limited by the said act of congress." The act of congress provided that, if it should appear, when the road was located, that the United States had sold any of the lands granted to the state, the state might, by an agent appointed by the governor, select other lands in lieu thereof. There was some 12,887 acres of vacant even-numbered sections of land which passed to the state by the act of congress, the parcel of land in suit being a part thereof, and within the first 20-mile section of the road which was constructed. By the act of the 11th of December, 1855 (Loc. Acts 1855, p. 469), the legislature provided for issuing state aid bonds to the Cairo & Fulton Railroad Company to the amount of $250,000, and provided that no part of the bonds should be delivered until the company signified its acceptance by filing a receipt for the bonds with the secretary of state. Section 3 of this act is as follows: "Sec. 3. Each certificate of acceptance, so executed and filed as aforesaid, shall be recorded in the said office of the secretary of state, and shall thereupon become, and be, according to all intents and purposes, a mortgage of the road, and every part and section thereof, and its appurtenances, to the people of this state, for securing the payment of the principal and interest of the sums of money for which such bonds shall, from time to time, be issued and accepted, as aforesaid." On the 29th day of June, 1857, the president of the road filed with the secretary of state a certificate showing the acceptance by the railroad company of the provisions of the act of December 11, 1855. Bonds were issued under this act, and receipts filed therefor, to the amount of $250,000, in August, October, and December, 1857. On the 3d day of March, 1857, the legislature passed another act (Laws Mo. 1856-57, p. 85), extending state aid to five or six railroad companies by a loan or guaranty of bonds, including therein an additional loan of $400,000 to the Cairo & Fulton Railroad Company. Section 17 of this act is as follows: "Sec. 17. All bonds issued under the provisions of this act shall constitute a first lien or mortgage upon the road and property of the several companies so receiving them, in the same manner as provided by the act of February 22, 1851, `to expedite the construction of the Pacific Railroad and of the Hannibal & St. Joseph Railroad,' and the act approved December 10, 1855, of which this is amendatory." On the 19th day of October, 1857, the president of the road filed his certificate, accepting on the part of the company the provisions of the act of March 3, 1857. Section 15 of this act provides that, in the event of a failure on the part of the company to pay any part of the principal or interest on the bonds of the state issued under the act, the governor should take such steps as might be deemed necessary and proper to foreclose the mortgage of the state, and enforce its lien on the property of the company. The bonds referred to in the act of March 3, 1857, were issued, and accepted by the railroad company. The Cairo & Fulton Railroad Company having made default in the payment of the state aid bonds, the legislature passed two acts, — one on the 19th of February, 1866, and the other on the 19th of March, 1866, — directing the governor to foreclose the state's lien, and providing for a board of commissioners to bid in the property, and giving the commissioners power to sell the property so purchased, reserving, however, from sale the land subscribed by counties to the stock of said road, in the following language: "Section 8, Act of December 11, 1855. That nothing in this act shall be so construed as to convey, or to authorize the commissioners to convey to the purchasers of the Cairo & Fulton Railroad any of the lands subscribed by counties to the stock of said road." The lands referred to in this section, known as "swamp lands" to distinguish them from "congress lands," to which latter class the tract of land in suit belongs, were excepted from the operation of the act, presumably because the counties subscribing...