McClellan v. St. Louis & Hannibal Railroad

Gantt, P. J. This is an action of ejectment to obtain possession of a strip of land, one hundred feet in width, through plaintiff’s farm in Lincoln county, Missouri. The defendant and its predecessor, the St. Louis & Keokuk Railroad Company, have occupied this strip since 1872, as a part of the right of way for said railroad, a line running from Gilmore, on the Wabash, St. Louis & Pacific railway, to Hannibal. Thomas G. Huttwas the owner of this farm in 1870, and on the eighth of August of that year conveyed this right of way through his farm to the St. Louis . & Keokuk railroad for $100, “subject to the following oonditions, viz.: That the said railroad company shall construct two cattle passes under their track' and said premises at such points as shall be selected by said [310] grantor, to-wit, the said Thomas Gr. Hutt, and shall also build and maintain a good post and board fence on each side of their track through all inclosures on said premises within three months after said road shall be completed and trains run to Troy, Missouri; also to make two crossings over said track in the fields.” Under this deed the railroad company took possession and constructed its railroad, sometime in 1872. The whole line was completed in 1880 or 1881. Hutt lived on' the farm all the time the road was being constructed. There is no evidence that he ever selected any points where the company should make the two underground passes, nor that he ever complained of the failure to build.the fences on either side of the railroad. In November, 1882, Hutt conveyed the farm to plaintiff by deed, which provides that the grant therein is “ subject to the right of way granted the railroad,” So that, in this case, the railroad company took possession and constructed its road by virtue of a deed. It was not a trespasser in the first instance. Plaintiff now seeks to eject the present company as the successor to the company that obtained the rigiit of way in 1870, for the breach of the conditions subsequent in Hutt’s deed, and, as a preliminary step, the record discloses that in 1883 he commenced an .action in the circuit court of Lincoln county to have Hutt’s deed forfeited, and although the decree was obtained in defiance of all equitable or legal considerations, so far as the record discloses, as that court had jurisdiction of the parties and the subject-matter, its judgment is binding in this collateral proceeding. The circuit court having declared Hutt’s deed void for the failure of the company to build underground passes, and no appeal having been taken from that decree, we must consider the case as if no deed had ever been executed by Hutt and wife to the railroad. The decree toes not extend further than to declare the deed null. [311] Leaving the deed out of view then, what were the rights of the parties when this action commenced? It will hardly be questioned that, until the decree of the Lincoln court was entered in the fall of 1884, the railroad company was lawfully in the possession of the land by virtue of the deed ; the decree itself only undertook to operate prospectively on the title to the right of way. Under a valid power then, defendant’s predecessor had entered and constructed a railroad. This piece of land was a section of a through line. The company by its charter had acquired a line, connecting it with .the Wabash system on one side and the important lines centering at Hannibal on the other. Expensive and permanent improvements had been made, all with the knowledge, assent and acquiescence of Col. Hutt, the grantor in said deed. - By the terms of that deed, Hutt alone was authorized to select the places where these underground passes should be made; this he had never done. That Hutt could not- have maintained ejectment with-or without a decree setting aside this deed, we think is clear. Baker v. Railroad, 57 Mo. 265; Bradley v. Railroad, 91 Mo. 493; Provolt v. Railroad, 57 Mo. 256. Is the condition of the plaintiff any better ? According to his testimony, he had lived in the immediate neighborhood over twenty-five years; knew the railroad was graded in 1872; knew that the railroad was located and operated through this land when he bought; saw the first shovelful of dirt ever thrown on it; was himself agent on the railroad bonds. Took a deed from Hutt mbjeet to this right of way. After obtaining his decree in the Lincoln circuit court, he voluntarily submitted himself, and his right to damages for the appropriation of this identical right of way, to the United States circuit court for the eastern district of Missouri, and asked judgment for $5,000 damages, and that the judgment might be declared a lien on this particular strip. That court decided [312] against him. He did not appeal from that decision. The defendant in this case is a purchaser from John I. Blair, who bought this road under the foreclosure proceedings, in which plaintiff was an intervenor. After all this plaintiff requests the defendant to build fences to separate this strip from his farm. He requests the company to build cattle-guards and it does it. He notifies its officers to clean off “its right of way,” and it does it. All this after his forfeiture of the deed. He testifies that his farm is worth more with the railroad through it than it would be without a railroad ; that the road had enhanced the value of his lands. . The law will not permit a railroad company to appropriate a citizen’s lands without just compensation, and our constitution provided every safeguard to protect him against wrong and oppression, and he can insist on the condition precedent that the damages shall be paid him, or into court for him, before he relinquishes his right; but it is equally well established that a landowner cannot, by his deed or acquiescence or. license induce a railroad to build its road, make permanent and costly improvements upon the strength of his conduct, and, then, for the breach of some condition subsequent, such as the erection of fences, constructing cattle-guards or making, as in this case, an underground passway, maintain ejectment. Baker v. Railroad, supra ; Provolt v. Railroad, supra ; Hubbard v. Railroad, 63 Mo. 68; Masterson v. Railroad, 72 Mo. 342. These railroads are highways, they are permitted to exercise eminent domain, because of their quasi public character. Without this, under our system of government, there could be no justification of permitting them to condemn their right of way through the citizen’s lands ; and, having been created for this public purpose, the public acquires an ■ interest to the extent that the public convenience requires they be maintained without unnecessary hindrance. Walther v. Warner, 25 Mo. 277. [313] “ In these great public works, the shortest period of clear acquiescence so as to fairly lead the company to infer that the party intends to waive his claim for present payment, will be held to conclude the right to assert the claim in any such form, as to delay the company in the progress of their works, and especially to stop the running of the road after it has been put in operation, whereby the public acquire an important interest in its continuance.” Provolt v. Railroad, supra. Here, after standing by for many years and knowing that the company had built this road and was maintaining it, the plaintiff bought this land. Notwithstanding plaintiff has managed to obtain an improvident decree, setting aside defendant’s deed, he must still recover’, if at all, in this case on his own deed from Hutt, and it is questionable whether he has increased his own estate by attacking defendant’s title. Clearlj7 Hutt would have been estopped, and plaintiff claiming under Hutt, with full notice, is in no better condition. His acquiescence is pronounced recognition of defendant’s right of way in solemn pleadings ; his various written notices to the company ; his delay of years even after forfeiture ; his procurement of the building of a fence that would unmistakably segregate this right of way from the remainder of his farm and place it in the exclusive possession of defendant, are all such clear recognitions of defendant’s title, that the bare statement of the case carries its own convictions. Gray v. Railroad, 81 Mo. 126 ; Cory v. Railroad, 100 Mo. 282. The court should have given defendant’s first instruction, and committed error in giving plaintiff’s instruction. Por this error the judgment of the circuit court is reversed.