Scarritt v. Kansas City & Southern Railway Co.

Sherwood, J. Under the view we take of the foregoing facts in evidence, but one of the instructions denied defendant need be discussed, and that one in the nature of a demurrer to the evidence. Mere silence or inaction of the owner whose land has been invaded, will not debar him of the use of any of the machinery of the law, whether legal or equitable, ■created for his protection. But where such owner goes forth to meet the invading party of railroad constructors, sees them doing acts of which every blow of the •axe and every thrust of the spade is a trespass, and yet •does not forbid such being done, but, on the other hand, holds, converse with the representative of the-railroad company, enters into negotiations with him, and though these negotiations are unsuccessful, relies on the assurances of future compensation made by such representative, thereby waiving prepayment, which •otherwise he might demand and secure, and suffers the work to go on without protest or hindrance, such owner, according to all our rulings, though he may recover for the damages done his property, yet can not maintain ejectment and oust the company, whose acts, except at the unlawful outset, have been done under the sanction of an unequivocal, though implied,.permission of the owner. Provolt v. Railroad, 57 Mo. 256; Baker v. Railroad, 57 Mo. 265; Walker v. Railroad, 57 Mo. 275; Gray v. Railroad, 81 Mo. 134; Bradley v. Railroad, 91 493; Cory v. Railroad, 100 Mo. 282; McClellan v. Railroad, 103 Mo. 313; Railroad v. Town Site Co., 103 Mo. 457; Avery v. Railroad, 113 Mo. 561; Webster v. Railroad, 116 Mo. 117; Childs v. Railroad, 117 Mo. 414. [304] The case of Walker v. Railroad, cited by plaintiff supra, was one where the owner was not present during the progress of the work, and was only informed of the trespass by the letter of a friend. Mere, inaction was all that characterized his conduct. And in the opinion in that case, it is distinctly and expressly distinguished from Provolt’s case, above cited, where there were circumstances of acquiescence and implied waiver of prepayment. In the case just mentioned, it is said: “His conduct surely led the company to believe such was his purpose and induced them to pursue a course and expend large sums of money which, otherwise, they would not have done. If plaintiff intended to rely on his rights and make present payment a condition precedent, he should have objected- and forbidden the company to interfere or to do any work on his land till the question of damage was settled. But this he did not do. He acquiesced in the proceedings of the company to the extent of not insisting upon the prepayment as a condition precedent; and, after having done so, we do not think that he can maintain ejectment.” Provolt’s case and Baker’s case have never been questioned in this court, and have become a rule of property in this state. Guided by those authorities, we hold the demurrer to the evidence well taken; that plaintiffs are estopped by the circumstances detailed in evidence from maintaining their action, and hence reverse the judgment. All concur.