Lambert v. St. Louis & Gulf Railway Co.

LAMM, J. — From a decree- in the Scott Circuit Court, finding that plaintiff owns and is in lawful possession of a triangular bit of land in Scott county, and has on this land two warehouses in which he stores grain, sis com pens holding three thousand bushels of corn, and fences enclosing and protecting the warehouses and pens, and that defendant has repeatedly entered the premises tearing down said fences when re-erected and threatens to continue such trespass in the future, and which decree makes perpetual a temporary injunction against defendant, its agents, servants and employees, enjoining them from tearing down plaintiff’s said fences or in any way interfering with his free and uninterrupted use of the premises, defendant on due steps appeals to this court. The case was assigned to Division One and came into Banc because a majority of that division was unable to concur in the opinion of our learned brother Valliant, affirming the judgment, nisi. In Banc on re-argument sis of his brethren were of opinion the judgment should be reversed and remanded with directions. Hence the case was reassigned for a principal opinion, and the divisional opinion of our learned brother Valliant will appear as a dissenting one. In our brother’s opinion a map appears — a part of the record of the case — of value in getting at an understanding of the locus and its environment. The case (in small compass) is this: Defendant is a railroad corporation owning and operating a line of railroad through Scott county running near the town of Benton. This railroad was built in 1893 by Houck’s Missouri & Arkansas Railroad — 700 — Co. Defendant, its successor by purchase, holds under a deed from the building company, not only conveying the line of road, but “all the rights of way, terminals, station grounds, stations, shops, roundhouses, sidings, switches and YY’s, municipal and other franchises, and all lands, tenements, rights and privileges, etc.; now owned or hereafter acquired in and about the construction and operation of the railroad aforesaid.” The bit of land in dispute will hereinafter be called “the triangle.” The building of the road cut off this triangle (an acre or so) from the main body of plaintiff’s farm. Thereupon he moved his fences away and the triangle lay out as commons — said triangle having for its base the Benton & Charleston public road on the north, for its perpendicular the Benton & Blodgett public road on the west, and for its hypotenuse on the east the 100-foot railroad right of way. The town of Benton lies on a hill, a distance off, and the railroad curved in towards this hill as closely as may be, the company locating Bénton station on its right of way in such a way that its north end lies flush with the south side of the Benton & Charleston public road and adjacent to the triangle. The topography of the country was such as to make this little • triangle a great convenience as depot grounds in affording the possibility of shipping ■ facilities to the public at large and access to' the depot, etc. Accordingly when the question of building the depot came up and it was found that the outlying triangle cut off the depot from the Benton & Blodgett public road, Mr.- Houck, on behalf of the railroad company, opened negotiations with Mr. Lambert to make an out-and-out gift of it to the railroad company for depot purposes, but these negotiations fell through. Lambert was willing to sell, not give, and the railroad company was too poor to buy in the pickle it was in. The case proceeds on the theory that Mr. Lambert was interested — 701 — as a matter of public spirit and personal gain in establishing adequate shipping facilities at Benton station and was willing to part with the triangle to- that end, •provided he was paid fifty dollars therefor. Things drifted in this shape for a spell when presently Mr. Anderson, a grain dealer of St. Louis, appeared on the scene and proposed establishing a warehouse at Benton station for handling and dealing in grain at that point. The' main line of the railroad runs east of the depot. Immediately west and very close to the ■triangle is a switch. Whether this switch was built' before the happening of things to be related or after-wards is dark. At any rate, it appears that a suitable spot for the contemplated warehouse covered a portion of defendant’s right of way as well as a portion of the outlying triangle. The railroad company was interested in promoting the building and running of this warehouse as an adjunct or feeder to its business as a common carrier of freight, and to this end the broken thread of negotiations with Mr. Lambert was taken up. Anderson was not willing to build unless the railroad company acquired the triangle— the only access to the warehouse for the public at large, we infer from the map, being over the triangle— and so notified the railroad company. We shall not swell the opinion with the evidence in detail. Counsel on both sides in oral argument quoted from the transcript sent to this court in long form. Many times and oft, by iteration and reiteration, we have referred the Bar to our rules requiring a printed abstract of the evidence- (in cases turning on the facts) and have pointed out that we will not hunt through a transcript as with a lighted candle to find the evidence. In this case appellant has furnished an abstract. No counter' abstract is furnished by respondent nor is any complaint made that appellant’s abstract is not fair and full. In this condition — 702 — of things appellant’s abstract is conclusively presumed to contain all the record essential to a just determination of the case on appeal. Prom that abstract it appears that a Mr. Crowder (the superintendent of Houck’s Missouri & Arkansas Railroad Co.), a Mr. Hunter (then connected with that company in acquiring rights of way, etc.), and Mr. Anderson met at Benton station to settle the matter' in hand. There is some divergence in the testimony, on immaterial points, for instance, as to whether conversations with Lambert were held at the station or in a nearby field, or at both points, and some divergence as to who was present when these conversations were held, but it persuasively appears that at that time and place, either in the field or at the station and before a lick was struck by Anderson in building a warehouse, it was ascertained from Lambert that his price for the triangle was fifty dollars and that he was willing to sell it at that figure. There is no dispute about that one vital fact. There is no dispute about another fact, equally vital, to-wit, that thereupon the' three parties, named pooled what ready cash they had in pocket, and, scraping together so- much as fifty dollar»; they caused it to be' paid over to Lambert for the triangle on behalf of the railroad company. That Lambert in pursuance of his offer to sell and in pursuance of their willingness to buy (and buying) received ,said fifty dollars as the purchase price 'of that bit of land and put the .'money in his own pocket, there is not a particle of doubt. Neither is there any doubt about the» fact that he has kept that money to this day. What happened then as shown by this record? Facts of further vital-significance are disclosed following in logical order hard on the heels of that transaction in 1894, showing visible exercise of ownership and possession by the railroad company with Lambert’s consent. For instance, it at once closed — 703 — an agreement -with. Anderson granting a permit in the nature of a lease to him to build and run a grain warehouse, located on a part of the original right of way and a part of the triangle; and Anderson at once erected the warehouse close to the switch then in existence (or subsequently laid) and went into business there. Presently, too, a Mr. Crenshaw, under a like permit from defendant’s predecessor, built another grain warehouse similarly located and went into business. The record shows that not only did the railroad company take open and unequivocal possession of the triangle, through Anderson and Crenshaw, but that thence-1 forward it was used for necessary shipping purposes' in loading and unloading wagons and cars of freight and storing heavy freight and that it was devoted, as intended by the railroad company, to commercial purposes in giving the public access over it to the warehouses and to the depot. True, the earmarks of this possession were not the earmarks of the possession of a farmer in using a piece of cultivating land, but the possession disclosed by the testimony was of a character incident to the railroad business and such as is usually taken and held by railroad companies of station grounds at country points. The evidence preserved in the abstract further shows that Mr. Lambert knew these warehouses were built under the permission of defendant’s predecessor on this very land. He knew the negotiations leading up to the purchase were for that very purpose and, so knowing, he acquiesced in it. As time went on Mr. Anderson sold his warehouse and Crenshaw sold his, and Mr. Lambert either directly from them or through their vendees or sub-vendees became the owner of both. These warehouses, under the agreement with the railroad company, did not become fixtures and therefore they could sell and Lambert could buy. When he took possession he engaged in handling and shipping grain himseif — 704 — and continued the warehouse business. It seems that ■thereupon he also- used the triangle in storing machinery to some extent and this without objection from the railroad company. As time went on, he dealt in corn and built some corn pens on the triangle. The record discloses that he then gave visible signs of ignoring the rights of the railroad company and to that end erected a fence connecting the corn pens with the warehouses, enclosing them. This being done without the consent of the railroad company and under an assertion, of right as absolute owner, the defendant tore the fences down and, when rebuilt, again tore them down, and this suit followed. The testimony-shows without contradiction that Houck’s Missouri & Arkansas Co. reimbursed Anderson, Hunter and Crowder for their said fifty dollar outlay in its behalf. It •shows, too, that Mr. Lambert stated to others shortly after the purchase that he had sold the triangle to the railroad company. There are indications in the record that he (subsequently, as we see it) claimed the railroad company was his debtor for an unknown amount for stock damage at' an unknown time, and for ties and possibly for a board bill of an unknown amount, accruing at unknown times. It seems, furthermore, that he assumed the right to credit the fifty dollars on this .old damage or board bill account or on some sort of running account, including the purchase of the triangle as one item; but the record is barren of any testimony showing that he made such credit by any arrangement with the railroad company or with those representing it. It seems when he was applied to for a deed, that at first, he did not claim he had made a conditional sale of the triangle, but that subsequently on another demand he expressed himself as willing to malm a deed if the old account was settled. The evidence is in such a shape that we cannot escape the conclusion that Mr. Lambert, having received his — 705 — price for the land and allowed the railroad company to deal with the world as its owner, as an afterthought concluded to hold hack the deed as a sort of security for an unsettled account disconnected from the land sale. Before the trial of the case Mr. Crowder died, and, on the theory that the purchase contract was made with him, Lambert was not allowed to testify to its terms. We may say there was some evidence that, shortly before the suit, there was a kind of possession held of the triangle by all parties in interest, known to the books as a “scrambling possession.” It seems also that at one time, as a somewhat public matter, and with some little public assistance, for the benefit of himself, his patrons and the patrons and employees of the railroad company, Lambert caused a, well to be sunk on the triangle which furnished water to persons having business with the railroad, or with him as a warehouseman; but, as said, the evidence indicates to our minds that any subsequent visible acts of possession of Lambert, after he made his contract to sell the triangle, commenced with, and were mere incident to, his purchase of the two warehouses and that he got into whatever possession he has now through and under cover of that purchase. Attending to the pleadings, it will do to say that the bill alleged facts which if true entitled plaintiff to relief. By its answer defendant admitted its incorporation, but denied all and singular each and every other allegation in the petition contained. By way of affirmative matter the answer alleged defendant owned the triangle and claimed title; that plaintiff claims some title or interest in said real estate adverse to the defendant, and prayed the court to try, ascertain and determine the interest of the defendant and plaintiff respectively to said real estate and by its decree to adjudge, settle and define whatever interest the de — 706 — fendant and the plaintiff may have in and to the same. In reply, plaintiff denied that defendant owned or had' any right, title or interest in and to said premises, or that it did so have at the dates mentioned in the petition or at any other time. The trial below and briefs here proceed somewhat on the theory that defendant seeks a specific performance, bnt in strictness defendant’s paper case is on section 650, relating to quieting title.. On such record is the decree, nisi, equitable? We tliink not. And this, because: I. There being an issue on the fact of possession and some evidence that its character was that of a “scrambling possession” at the very time defendant is alleged to have broken plaintiff’s close and committed the trespasses complained of (threatening to' continue such alleged wrongful acts) it is argued that plaintiff was not entitled to his remedy by injunction. But this view is wide of the merits of the concrete case in judgment and may be profitably passed by. EC. It is argued it is apparent that plaintiff’s damages are not irreparable nor is defendant insolvent, and, having an adequate remedy at law, he should he cast. But from ancient times it has been held that equity will interfere in cases of this character to avoid multiplicity of suits and will entertain a proceeding to enjoin, which by analogy may be said to be in the nature of a bill of peace. Without discussing the limitations of the doctrine, we announce our concurrence in the views of Valliant, J., in that behalf, and proceed to consider the main proposition — the foregoing, with other, questions raised by counsel not being deemed material. III. That proposition is this: Conceding the dry naked legal title to the triangle to be in plaintiff — conceding even that the possession — 707 — of both parties or of one or the other at the time of suit is not of sneh a character in quality or time as ripened into a title by mere limitation as between them, then, had defendant under the facts of this record an equitable title to the land? and herein of the Statute of ’Frauds. The contract between Lambert and the predecessor of defendant in 1894 was concededly verbal. The courts are not in accord on what elements of part performance take a verbal contract for the purchase of real estate out of the Statute of Frauds. Happily, this case is freed from any call to discuss the nice refinements found in the case learning in that regard; for, if it once be determined that the case is one of such performance by the vendee as payment of the full purchase price and the vendee’s taking possession under the contract with the consent of the vendor, then, all the eases hold that the concurrence of those facts takes the case out of the Statute of Frauds. Referring to the record facts hereinbefore uncovered and set forth, we hold that the terms of the contract, including the price to be paid and a sufficient ascertainment of the parcel of land involved, are established to a moral certainty. We hold that the evidence establishes beyond doubt that said price was paid as purchase money, was accepted and retained as such, and that possession by virtue of that contract was taken by the railroad company with the consent of Mr. Lambert. It is argued by plaintiff’s learned counsel that their client from start to finish retained possession of the triangle. They admit he knew the warehouses were being built with his acquiescence, but they say he was willing the land might be used for a quasi-public purpose in which he was interested. That he had the right to take Ms fence down and in a neighborly and passive way permit Anderson, Crenshaw and the railroad — 708 — company to use the land. That he did not have to stand on the land and blow a trumpet proclaiming his ownership, or with force and arms assert his domination as owner. All these things (barring continuous possession as owner) may be graciously conceded to learned counsel, but that concession does not help plaintiff; because this record discloses that neither the railroad company nor Crenshaw nor Anderson nor the public having business with the depot or warehouses ever occupied the triangle for business ends until after the railroad had paid the purchase price. The record shows that what they did thereafter naturally flowed from the purchase by the railroad company and is referable alone to that fact. It shows that the railroad company visibly asserted its domination over the triangle by exercising rights belonging only to a paramount owner and always claimed ownership. It blew a trumpet of ownership when it openly contracted with Anderson and Crenshaw to build warehouses on the locus and adjusted its business affairs to deal with those warehouses. It did not have to fence the ground to assert its proprietorship. Its acts of ownership and possession were precisely those to be expected, as said, of a railroad company at its depot grounds at shipping points in the country. Mr. Lambert with his eyes wide open to these acts and with his pocket (figuratively) bulging with the contract price must be held to have consented to such possession in the absence of protest made at the time. This is one of those cases where acts speak louder than words — where silence shows consent. With such possession taken and used by consent, fortified by a precedent payment of the purchase price in compliance with the verbal contract, the paramount equitable title vested, ipso facto and eo instanti, in the railroad company as against the whole world (including Lambert) — 709 — and thenceforward he held merely a naked legal title seized to the nse of his vendee. [Shaffer v. Detie, 191 Mo. l. c. 392, ei seq., and cases cited; Bean v. Valle, 2 Mo. 126; Price v. Hart, 29 Mo. 171.] Between the earliest and the latest case, supra, an array of others to the same effect might be cited from this court. Under the facts, defendant was entitled to specific performance in a strict sense if the pleadings had been drawn on that theory. However, having the paramount equitable title, defendant was entitled on the pleadings under section 650 to have the same ascertained and determined, defined and adjudged in and to the triangle. Being so entitled, the plaintiff was not entitled to a decree enjoining defendant from entering upon its own land and removing fencing not there by its permission. Under defendant’s answer and the evidence the plaintiff was entitled to a finding that he owned the warehouses and corn pens on the triangle, as the vendee of those who built them under a permit from defendant, with a right to have them remain until tbe verbal permit in the nature of a lease is brought to an end as provided by statute. The premises considered, the judgment is reversed and the cause remanded with directions that the chancellor, nisi, enter a decree dissolving the injunction; adjudging the paramount equitable title to the triangle (describing it as in plaintiff’s petition) in defendant; finding that plaintiff is the owner of the warehouses and corn pens with the right to have them be and remain upon the triangle and in his use for warehouse purposes until his permit in the nature of a verbal lease be brought to an end as provided by statute, and to make such other orders and entries relating to costs and damages on the dissolution of the injunction as may accord with equitable procedure. — 710 — Gantt, G. J., Fox, Graves and Woodson, JJ., concur; Burgess, J., concurs in the result; Valliant, J., dissents in a separate opinion.