Withers v. Kansas City Suburban Belt R. Co.

• Citation: 226 Mo. 373,126 S.W. 432
• Parties: WITHERS et al. v. KANSAS CITY SUBURBAN BELT R. CO. et al.
• Decision Date: 12 February 1910
• Court: United States State Supreme Court of Missouri

126 S.W. 432

226 Mo. 373

WITHERS et al. v. KANSAS CITY SUBURBAN BELT R. CO. et al.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

Rehearing Denied March 15, 1910.

1. JURY (§ 13) — RIGHT TO JURY TRIAL — EQUITABLE COUNTERCLAIM.

Where, in a suit to recover compensation from a railroad company for land taken for a right of way which plaintiffs claimed as accretions, defendants filed an equitable counterclaim, asserting that they purchased the land from those appearing to have record title more than 30 years before the institution of the suit, that they had held possession ever since, and made extensive improvements without any claim of ownership or protest by plaintiffs, and that they were therefore estopped and barred by laches from claiming the land, and praying that defendants be declared the absolute owners of the property, free from plaintiffs' claims, and that plaintiffs be enjoined from prosecuting any suit to recover the property, or for equitable relief, such answer and counterclaim converted the suit into one in equity, triable without a jury, notwithstanding Rev. St. 1899, §§ 691, 694

(Ann. St. 1906, pp. 700, 703), authorizing jury trials in certain cases.

2. ESTOPPEL (§ 52) — "ESTOPPEL IN PAIS" — DEFINITION.

An "estoppel in pais" is a right arising from acts, admissions, or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged.

For other definitions, see Words and Phrases, vol. 3, pp. 2497-2508; vol. 8, p. 7655.]

3. WATERS AND WATER COURSES (§ 93) — ACCRETION — EVIDENCE.

In an action to recover compensation for land taken for a railroad right of way which plaintiffs claimed by accretion, evidence held insufficient to show that the land in question was accretion to plaintiffs' land, but to indicate rather that it was accretion to intervening land.

4. EMINENT DOMAIN (§ 79) — COMPENSATION — ESTOPPEL — LACHES.

Where plaintiffs had no fences inclosing the land in question, taken by defendants for a railroad right of way and claimed by plaintiffs as accretion, and there were no other indicia of ownership in plaintiffs, or those under whom they claimed, to show that they had any claim to the land, and though plaintiffs were advised of the railroad's asserted right thereto in 1893 and continuously thereafter, they took no steps to assert their title until the bringing of the suit, December 19, 1898, during which the railroad had spent large sums of money in improving the land, plaintiffs were estopped by laches to claim damages by the railroad company's appropriation.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Suit by Cara Lee Withers and others against the Kansas City Suburban Belt Railroad Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Scarritt, Scarritt & Jones, for appellants. S. W. Moore, Cyrus Crane, and R. E. Ball, for respondents.

GANTT, P. J.

This is a suit to recover the value of a certain tract of land which the plaintiffs claim to own, and which is being used and appropriated by the defendants for a railroad right of way and other railroad uses. The original petition was filed December 19, 1898. On March 22, 1901, the petition was amended, making the receivers of the railroad company and the Kansas City Southern Railway Company, which had been organized for the purpose of taking over the properties of the Suburban Belt Company, parties defendant. To this amended petition all of the defendants, on April 10, 1901, filed an answer, which consisted merely of a general denial. On December 30, 1901, the death of Webster Withers was duly suggested to the court, and the cause was revived as to his interest in the name of Cara Lee Withers as executrix and sole devisee, and the amount of the recovery was by an amendment to the petition changed from $50,000 to $85,000. The cause was tried on the pleading as amended, and on May 21, 1902, the jury rendered a verdict for the plaintiffs for $83,500. The circuit court, on April 18, 1903, granted a new trial, on the grounds that the court had improperly rejected competent evidence, and that the verdict was excessive. It appears that on January 14, 1902, the Kansas City Southern Railway Company received a master's deed under the decree of the United States circuit court for all the railroad property of the Kansas City Suburban Belt Railroad Company, and took possession thereof. Afterwards, on April 25, 1903, a second amended petition was filed, and to this second amended petition the several defendants filed separate answers; while separate, they contained the same defenses. As the case comes to this court for review upon the issues raised upon the eighth count of the defense set up in the answer and the reply thereof, it is deemed best to set forth this cross-bill and counterclaim in full: "That the Consolidated Terminal Railway Company, in February, 1892, purchased a portion of the described real estate for value, and took a deed therefor, and recorded it, and in July, 1892, the said last-named company consolidated with, and its rights became vested in, the Kansas City Suburban Belt Railroad Company; that the Kansas City Suburban Belt Railroad Company purchased the remaining portion of the described real estate in December, 1902, for full value; that said purchases were in good faith, without notice or knowledge of the claims of the plaintiffs; that the Consolidated Terminal Railway Company executed its mortgage of $750,000, covering the real estate acquired by it as aforesaid, and other property, which mortgage was duly recorded in May, 1892; that part of the bonds secured by said mortgage was used in improving the described property; that default was made in the performance of the conditions of the mortgage, and Knott and Swinney were appointed receivers on September 6, 1900, and duly qualified as such, and upon such appointment the receivers took possession of said property, and held such possession until the sale of the property; that the same was sold under decree of the United States Circuit Court, at Kansas City, and the Kansas City Southern Railway Company became the purchaser thereof; that all of the property is still in public use as a railroad property."

Paragraph 3 alleges that the Consolidated Terminal Railway Company and those succeeding it did proceed to improve the said land for railroad purposes, and expended large sums of money in so doing; that said land was filled, and the surface thereof raised; that it was subject to overflow by the Missouri river, and that the filling and raising to the surface were necessary to escape the danger of overflow, and to use the land for railroad purposes, railroad tracks, switches, and trestles have been built on the land at great cost, and that such expenditures were made in good faith without notice or knowledge of the claims of the plaintiffs.

Paragraph 4 alleges that the defendants in the suit have successively from time to time expended large sums of money in connection with the use of the land for railroad purposes, for maintaining tracks and switches thereon and repairing same; that plaintiffs with full knowledge have stood by and permitted said improvements and expenditures to be made without objection, and without asserting any claim to the property until the bringing of this suit.

Paragraph 5 alleges that defendants are informed and believe the plaintiffs claim the described land as accretions to block 19 in West Kansas addition, which claim they deny. It is then charged that, if any part of said land consists of accretions, it consists of accretions which attached to land not owned by plaintiffs or those under whom plaintiffs claim, but by other persons or corporations. The title of the latter they claim to have acquired, and reiterate the 10-year statute of limitations.

Paragraph 6 charges that plaintiffs claim other lands than the tract described in the petition, which, it is alleged, are claimed to have been formed by accretions, and that the boundaries of such lands are uncertain in nature and character, and that it is necessary that the boundaries between the tract of land mentioned in the amended petition and such other lands of the plaintiffs be ascertained, fixed, and determined.

Paragraph 7 charges that the amended petitions have been filed by the plaintiffs for the purpose of harassing and annoying the defendants, and that the plaintiffs threaten to bring other suits and institute other proceedings, and that the purpose of this suit and the threatening litigation is to becloud defendant's title.

Paragraph 8 reiterates the charge that the Consolidated Terminal Railway Company and the defendant succeeding it put in their tracks, paid the taxes, and improved the described property in good faith, and that plaintiffs stood by and made no claim to said property, and that such payments were made without any notice of any claim of the plaintiffs.

Paragraph 9 is a reiteration of the 31-year statute of limitations, under section 4268, Rev. St. 1899 (Ann. St. 1906, p. 2342), in substantially the same language as that of count 4 of the answer.

Paragraph 10 reiterates the previous allegations as to defendant's acquisition of the land and expenditures thereon with the knowledge and acquiescence of plaintiffs, and invokes the principles of laches and estoppel.

The prayer is as follows: "Wherefore this defendant asks that plaintiff's petition be dismissed, and that the court adjudge and decree: (1) That defendant the Kansas City Southern Railway Company is an absolute owner in fee simple, free from any claim, right, title, or interest of the plaintiffs, or any of them, of the real estate in said last amended petition described; (2) that neither the plaintiffs, nor any of them, have any claim, possessory or otherwise, to such property; (3) that the limit and boundary between the said property so owned by defendant the ...