Scarritt v. Kansas City, Osceola & Southern Railway Co.

SHERWOOD, J. Ejectment for a strip of ground of about an acre in extent in Kansas City, Missouri. This cause has been here before, and is reported in 127 Mo. 298; that is to say ejectment was brought by plaintiffs’ testator against defendant’s predecessor, the Kansas City & Southern Railway Company. In that case the then defendant pleaded estoppel in consequence of the acquiescence of Searritt, plaintiffs’ testator’, in the construction and operation of this defendant’s road over his land and by his acquiescence in such [681] defendant using and occupying for tbe purposes of its road, Ms land, and by its expenditure of large sums of money in building and operating its roads, plaintiffs’ testator acquiescing therein. . . TMs defense was held valid by this court, and that in consequence of said circumstances plaintiffs could not maintain ejectment for the land, and that a demurrer to the evidence was well taken, and should have prevailed. The answer of the present defendant pleaded a general denial, the statute of limitations, res judicata and similar matter to that pleaded in the former action. Eeply a' general denial. In the case at bar the undisputed facts show that in 1889 plaintiffs’ ancestor brought ejectment for this property and defendant admitted possession. On January 31, 1890, the judgment of the circuit court of Jackson county found that the defendant had been in possession from the date of entry in 1882, from which the defendant appealed, claiming ownership of the property in controversy. This appeal was decided March 5, 1895, and before the return of the mandate, plaintiffs filed the present action, alleging that the defendant entered into the possession of the premises on the fifth day of January, 1890, and unlawfully withheld the same from the plaintiffs. No change in the situation of the defendant, from the time of entry in 1882, to the present, occurred, and its present occupancy is the same and has been the same from that date to this. The evidence showed that a slide occurred on ground adjacent to this that covered the track of defendant with earth to the depth of five to seven feet, and that it had remained in that condition for a period of five years, and that at the time of trial the defendant ran its trains into Kansas City over the tracks of the Suburban Belt Company, but that this arrangement was only temporary, and that defendant’s purpose and intention was and is to enter the city over the property in controversy. [682] And the evidence not only showed no abandonment of the premises, blit a continuous user of the track, the land for which was thus obtained from Scarritt, down to the time the slide aforesaid occurred, and since that time there has been a continuous user for the space of the five years of a portion of the Scarritt land on its eastern end (where the slide did not extend) by defendant for the storage of its cars when backed from the Ohicago & Alton, and a like user of a portion of the Suburban Belt Line track, and no adverse possession on the part of anyone else but defendant was pretended. Two or three days before the trial of this cause, however, a portion of the track which connected defendant’s track with the Ohicago & Alton had been torn up, but this, of course, would not affect the legal status of the situation. The doctrine of equitable estoppel, successful in this court on a former occasion, is still as valid a defense as against an action of ejectment brought by plaintiffs as it was in the original suit. In fact, where such a defense is available at all, it is as valid against an action of ejectment as though the party making it had by process of condemnation acquired a complete title to the land in controversy. But if abandonment of the premises has occurred, then, of course, the defense of an estoppel would be equally as unavailing as would a condemnation of the premises through regular process. But there has been no abandonment of the locus in quo in question, and there is not a scintilla of evidence to show it, because in order to show an abandonment, there must be not only an intention to abandon, but an actual abandonment. To constitute the latter there must be a clear, unmistakable and unequivocal act looking to, and furnishing evidence of, an intention to abandon. The case of Roanoke Inv. Co. v. Railroad, 108 Mo-. 50, has been cited by plaintiffs as being in their favor, but that case, however correctly decided, has no application to the differing facts of the present case, for in speaking of that case [683] in the subsequent one of Railroad v. Railroad, 129 Mo. loc. cit. 70, it is said: “There was no such evidence of abandonment in this case as was offered in the Roanoke Inv. Co. v. Railroad, 108 Mo. 50. A casual reading of that case (Roanoke) will show that it rests upon acts of abandonment of such a nature as indicated not only an intention, but a complete abandonment of the tract in controversy in that case; but we also held in that case, That the mere non-user of this piece of road, in the absence of adverse possession by the. servient owner, or other acts of such unequivocal nature on the part of the owners of the railroad as evinced a clear intention to abandon the easement, would not work an extinguishment of the right, however acquired.” And in Hickman v. Link, 116 Mo. loc. cit. 127, when speaking on this subject, this court said: “Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect. To constitute an abandonment there must be the concurrence of the intention to abandon and the actual relinquishment of the property, so that it may be appropriated by the next comer.” Elsewhere a text writer says: “Mere non-user, even though for twenty-five years, will not of itself extinguish the easement. It must be accompanied with the express or implied intention of abandonment, and the owner of the servient estate, acting upon the intention of abandonment and the actual non-user, must have incurred expenses upon his own estate. The three elements, non-user, intention to abandon and damage to the owner of the servient estate, must concur in order to extinguish the easement.” [Tiedeman. on Real Property (1 Ed.), sec. 605.] Eor these reasons defendant’s demurrer to the evidence should have prevailed; therefore, judgment reversed. All concur.