Wilson v. Ward Lumber Co.

• Decision Date: 13 May 1895
• Docket Number: 3,788.
• Citation: 67 F. 674
• Parties: WILSON v. WARD LUMBER CO.
• Court: U.S. District Court — Eastern District of Missouri

67 F. 674

WILSON v. WARD LUMBER CO.

No. 3,788.

United States Circuit Court, E.D. Missouri, Eastern Division.

May 13, 1895

This is an action of ejectment, with consequential damages for cutting and removing timber from a large body of land in the Mississippi county, in this state. The value of the timber being agreed upon, and a jury being waived, the case is submitted to the court on the single issue of title. The common source of title has its origin in Act Cong. Feb. 9 1853, making a grant of the lands in question, for the purpose of aiding in the construction of the Cairo & Fulton Railroad, six sections in width on each side of said road. The said act provided, inter alia, that said lands so granted should be subject to disposal by the state legislature for the purpose in question. By Act Cong. July 28, 1866, the provisions of the first-named act were revived and continued for a period of 10 years. By an act of the legislature of Missouri of December 11, 1855, the governor of the state was empowered to cause to be issued and delivered to said railroad the bonds of the state, amounting to $250,000, with interest not exceeding 6 per centum per annum. This act provided that the certificate of acceptance of such bonds by the company should constitute a mortgage on said road, and every part thereof, and its appurtenances, to secure the principal and interest of said bonds. On the 3d day of March 1857, the state legislature passed an act to amend an act entitled 'An act to secure the completion of certain railroads in this state, and for other purposes, approved December 10, 1855,' granting to the said Cairo & Fulton Railroad thereby an additional loan of $400,000. This latter act contained the following language: '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 approved February 22, 1851, to expedite the construction of the Pacific Railroad and the Hannibal and St Joseph Railroad, and the act approved December 11, 1855, of which this is amendatory. ' By section 15 of said act of 1857, it was provided that, in the event of the failure by the company to pay any part of the principal or interest of the bonds of the state issued under said act, the governor could take such steps as might be necessary and proper to foreclose the state's mortgage, and enforce its lien upon the property incumbered. The president of the Cairo & Fulton Railroad Company on the 29th of June, 1857, filed with the secretary of state the required certificate of acceptance by the road under the provisions of the act of December 11 1855, and a like certificate on the 19th day of October, 1857, accepting the provisions of the act of March 3, 1857. On August 5, 1857, the said president filed with the secretary of state his receipt for 100 state bonds, at $1,000 each, and on October 17, 1857, he filed a like receipt for 80 state bonds of like denomination, and also receipts for the residue of said bonds, dated December 1, 1858, April 10, 1859, and July 25, 1859. After said enactments, and the said acceptances by the railroad company, and after the acceptance of a portion of the bonds of the state, the railroad company, by appropriate deed, conveyed to Moore, Wilson, and Waterman the roadway, stations, and depot, together with all its lands and real estate, in trust to secure the payment of certain bonds of the company. This deed of trust in its caption purports to be of date May 23, 1857, but was not acknowledged until May 28, 1858. By the recitations of this deed of trust it was made 'subject to a prior first and only lien in the nature of a mortgage in favor of the state, made to secure and indemnify said state against the payment of said bonds, as said state may from time to time issue and deliver,' etc., 'under and by virtue of the provisions of the several acts of the general assembly of Missouri entitled as follows: 'An act to expedite the construction of the Cairo and Fulton Railway Company, passed December 11, 1855;' and also, 'An act to amend an act to secure the completion of certain railroads in this state, and for other purposes, approved December 11, 1855, approved March 3, 1857.' ' The amount of said bonds secured by said deed of trust was not to exceed the sum of $1,600,000, with interest, with the proviso that nothing contained in said deed should have the effect or operate as a lien upon said railroad, nor any part nor section thereof, nor its appurtenances, prior or in derogation of, or in any way to interfere with, the lien of said state under the acts of the legislature aforesaid. The plaintiff in this case claims title under foreclosure proceedings instituted on a default in the said deed of trust to Moore, Wilson, and Waterman, by deed dated in 1859, to one Hamilton. Hamilton conveyed to one Stephens, and Stephens to Blakely Wilson, in 1860, under whom the plaintiff claims as heir. The defendant claims title as follows: The Cairo & Fulton Railroad Company having defaulted in the payment of said aid bonds, the legislature passed two acts, one of February 19, 1866, and the other of March 19, 1866, authorizing and directing the governor of the state to foreclose the state's lien, predicated of the acts of December 11, 1855, and March 3, 1857, providing for a board of commissioners to bid in the property at said foreclosure sale, with power in them to resell the property so purchased. Under these foreclosure proceedings the governor of the state, by deed October 12, 1866, sold and conveyed to the state 'the said Cairo and Fulton Railroad, and every part and section thereof, so far as the same is constructed, completed, or projected, together with its appurtenances, rolling stock, and property, of every description, and all rights and franchises thereto belonging. ' By a like description, by deed January 17, 1877, the state conveyed the property to Reed, Mackey, Vogle, and Simmons, who conveyed the property to Thomas Allen. From Allen this title passed to the Cairo, Arkansas & Texas Railroad Company, which consolidated with the St. Louis & Iron Mountain Railway Company, organized in 1866, under the name of the St. Louis, Iron Mountain & Southern Railway Company, which last-named company, by appropriate deed, conveyed the land in suit, as a part of its claimed purchase, to the grantor of the defendant, by deed dated March 28, 1888.

H. J. Cantwell, A. W. Edwards, James A. Boone, and J. E. Burrough, for plaintiff.

M. L. Clardy, for defendant.

PHILIPS District Judge (after stating the facts).

From the foregoing statement of facts it is apparent that the question to be decided is whether or not the state of Missouri, by virtue of the two acts of 1855 and 1857, and the issue of the bonds giving the state's aid to said Cairo & Fulton Railroad Company, and its acceptance thereof, acquired a lien upon the lands granted to said railroad company, as well as to the railroad itself. If the state did acquire such lien, the title to the land in question unquestionably passed, under the foreclosure proceedings and mesne conveyances, to defendant's grantor. It is not contended by counsel for defendant that under the state's lien created by the act of December 11, 1855, title to the land passed by the foreclosure proceedings, as that lien applied only to 'the road, and every part and section thereof, and its appurtenances'; the term 'appurtenance' not being broad enough to extend to the lands outside of those used for and in connection with the location and operation of the road. But the whole controversy centers upon the construction to be given to the provision of the act of March 3, 1857, which extends the lien of the mortgage 'upon the road and property of such company. ' The act of 1855, in giving the state a lien for the first credit of $250,000 given the road, having limited its operation to the road and its appurtenances, while the act of 1857 extended the lien for the additional loan of $400,000 to the road and property of the company, it would naturally seem that some effect and operation ought to be given to this change in phraseology, because the term 'property' has a much wider range in its embrace and application than that of an appurtenant. The term 'appurtenant,' in its legal common acceptation, implies a thing as belonging to, accessory, or incident to, some other thing. As used in connection with land, it means a thing used with the land and for its benefit, annexed to and connected therewith. So the appurtenant of a railroad implies that it is incidental to, connected and used with, the road, as a part of and essential thereto, such as depots, stations, switches, and switch yards, and the like. But the term 'property,' as commonly used, denotes 'any external object over which the right of property is exercised. In this sense, it is a very wide term, and includes every class of acquisitions which a man can own or have an interest in. Taking the word in the latter signification, property is broadly divided into real and personal property. ' Black, Law Dict. If A. should to-day loan B. $250,000, and take as security therefor a mortgage on B.' s dwelling house and appurtenances, and next year make to B. an additional loan of $400,000, and take an additional mortgage security on the dwelling house and property of B., the difference in phraseology would at once challenge attention, and the ordinary mind would intuitively perceive a good and sufficient reason for extending the lien for the additional loan to other and additional security, well expressed in the more comprehensive term 'property.'

The danger which any court encounters, in seeking out a technical possible reason for giving the...