McKinley v. Chicago, Santa Fe & California Railway Co.

Ellison, J. If defendant could on January 12, 1887, the date it let the contract of construction of the road, be charged with knowledge or notice of plaintiff’s rights in the land (if any he had, not having yet taken possession under his lease), it would seem under the cases of Ullman v. Railroad, 67 Mo. 112 and Williamson v. Fischer, 50 Mo. 198, that it would be held as a co-trespasser with the contractors under the idea that it had directed the trespass. That is, it would be held to have contracted for, and directed a trespass against the rights of the tenant. The case shows that defendant at the date of its contract with the contractors, January 12, 1887, had the consent of Woods, the owner of the land, to construct the road, and would not, therefore, under the case of Clark v. Railroad, 36 Mo. 202, and the cases above cited, have been liable to him, had he remained in possession. The question, then, on this branch of the case is, did defendant have notice of any right existing in plaintiff at the time it acted in the matter. Our conclusion is it did not. Plaintiff’s contract of renting, though entered into in November preceding defendant’s contract, was a mere parol lease for a term not more than a year, and we are not aware of any law charging any one with notice of such lease, at least prior to taking possession under it. Prior to taking possession a tenant under a verbal lease has no estate in the lands. Union Bank v. Gitting, Md. 181; Fincher v. Phillips, decided this term. So then it appears that at the time defendant took its only action in the matter, viz., at the date of the contract, it committed no wrong against plaintiff for the reason that at that time he had no estate in the land, and whatever right, if any, he may have had was not known to defendant who was dealing by consent of the owner. But it is plaintiff’s theory that those engaged in the construction of the road were defendant’s servants. We do not think so. The road was being built for [457] defendant, it is true, but defendant had contracted the construction to other parties who could in no sense be called its servants, unless by reason of a provision in the contract thereinafter set out. They were to build the roadbed ready for the superstructure according to the terms of the contract and deliver it over by a certain date. They employed their own hands and teams and furnished their own material, implements and tools. They were independent contractors. The relation of master and servant did not exist. Barry v. City of St. Louis, 17 Mo. 121: Hilsdorf v. City of St. Louis, 45 Mo. 94; Clark v. Railroad, 36 Mo. 202. This contract, it is true, provides that “the work shall be executed under the direction and supervision of the chief engineer of said railway company and his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work performed under the-contract shall be determined.” It further provides that, “ If any foreman, agent, mechanic or laborer, employed by the contractors, shall, in the opinion of the engineer, execute his work in an unfaithful or unskilful manner, he shall forthwith, by the direction of the engineer, be discharged.” These provisions in the contract are quite similar to those in Blumb v. City of Kansas, 84 Mo. 112. That case is controlling authority here, and we feel bound to follow it. There the city had power to suspend the work. " The work was under the general supervision of the city engineer, and there, as in this case, the contractor was to discharge any workman whom the engineer directed to be discharged. We see no way by which plaintiff’s case can stand, and, therefore, feel constrained to reverse the judgment. All concur.