Pratt v. Saline Valley Railway Co.

GOODE, J. (after stating the facts). — Plaintiff, Anna M. Pratt, is the owner of a farm in St. Genevieve county, which was devised to her by her father John Lorenz. The description of the land is intricate and as it is not material to onr decision will be omitted. In April, 1905, or thereabouts, the defendant company entered on the farm and built a roadbed and line of railway across it. In doing this eleven or twelve acres were appropriated for right of way and damage was done, it is alleged, to the remainder of the farm. The petition charges, the value of the land actually appropriated was $100 an acre, or $1,200. The railway followed the cou7*se of a creek which surrounds the farm on the north and east sides. This creek is crossed by a railway bridge not far from the point where the line enters the farm close to its southeast corner and .thence proceeds in a direction just west of north to within a short distance of the northern boundary of the farm, which is the creek. Near the northeast corner of the land the road runs westward and a little to the south, following the course of the creek to the west boundary of the farm. In the main, if not throughout its whole route through the farm, the railway runs along the creek bottom, leaving the bluffy land to the south and west. Plaintiffs say this route takes the railway through the cultivated fields and bottom lands and divides said fields from the rest of the farm, cutting them into narrow strips lying between the right of way and the creek, and rendering the waters of the creek inaccessible from the main part — 183 — of tbe farm and to plaintiff’s stock. It is further charged the railway runs within fifty feet of the dwelling house, cuts off the wagon road leading to it and greatly hinders and inconveniences plaintiffs in the enjoyment of their home. The entry and the appropriation of their land were made without the institution of condemnation proceedings, and the lands never have been condemned for railroad purposes. In defense it is admitted the company entered on the lands described in the petition, constructed its railroad thereon and in so doing took a strip one hundred feet wide through the farm. It is further alleged that Anna Pratt, instead of owning the fee in the land had only a life estate, and that her husband Joseph C. Pratt, has no interest in the land other than as her husband, and further, that the two plaintiffs have children bora of their marriage. The answer alleges the land not appropriated was greatly benefited by building the railroad, in addition to the benefit accruing to other lands in the vicinity. In further defense it is alleged the company constructed the road through the land with the consent of Anna Pratt, as owner of the life estate. It is set up that her husband, both for himself, and as her agent, repeatedly assured the company that he and his wife, in consideration of the benefit the road would be to them, had signed a deed granting to defendant the right of way as it now lies, through the farm; and said Joseph Pratt, acting for his wife and himself, led the officials of the road to believe the company had been given the right of way over the farm, and the company acted on said representation in good faith in building the road; that it was thereby directly induced to build along the route described in the petition, and plaintiffs stood by without protest and saw ten thousand dollars expended in the work, knowing the company was acting in good faith and in reliance on their representation that the right of way occupied had been given to the company; that plaintiffs acquiesced — 184 — in and consented to the construction of the railroad aforesaid, and the company is now in possession of its right of way with the consent of plaintiffs and not otherwise. A reply was filed consisting of a denial of the averments of new matter in the answer. The trial was by a jury, resulting in a verdict for plaintiffs in the sum of $2,000, and defendant appealed. Suffice to say as to the estoppel pleaded, consisting of allegations that plaintiffs represented to the company a deed had been executed conveying the right of way through the farm, thus inducing the company to build its road, and had encouraged the building and watched defendant make a large outlay without protest, that at most, issues of fact were made by the evidence as¡ to these matters. Some evidence for the company tended to prove -Joseph Pratt made the statement regarding the donation of the right of way averred in the answer, but his own evidence and a portion of the defendant’s goes to show he only promised the right of way would be conveyed to the company if it built along a certain hillside on the farm, instead of in the creek bottom, the route actually occupied. The court would have fallen into error had it declared as a matter of law plaintiffs were estopped to claim damages. As soon as they learned of the entry of the company on their farm for the purpose of building a road through it, and this was but a few days after the entry and before any outlay of consequence had beén made, they telephoned the company’s attorney, protesting against the -construction of the road over their land until proper condemnation proceedings had been instituted, and stating they would demand damages for the unlawful entry. The elements of an equitable estoppel are not in proof. [Eitelgeorge v. Bldg. Assn., 69 Mo. 52; Spurlock v. Sproule, 72 Mo. 503.] Before taking up the chief point in the case, we will advert to another proposition ‘ insisted on by de185 fenclant; i. e., that the only remedy available to plaintiffs is the one provided by section 1271, Revised Statutes 1899. Said section will be found in chapter 12, article 7, which relates to the condemnation and valuation of lands taken for railroad and other public purposes, and prescribed rules for the exercise of the right of eminent domain by public corporations. Most of the chapter is devoted to regulating the condemnation of property in proceedings instituted by some company wishing to appropriate the property; but section 1271 invoked by defendant in the present case, says that in case property is to be, will be, or has been damaged by a corporation for public use, any person interested may have such damages ascertained and the proceedings for ascertaining the damages shall be the same as are or may be provided by law for assessing damages which the owners of land may sustain in consequence of its appropriation for railroad purposes. Defendant says the remedy provided by that section is exclusive, and instead of plaintiffs having the right to sue for the value of the land appropriated by the company and for damages for the injury done to the remainder of the farm, they should have instituted proceedings under the statute for an assessment of all their damages. It will be observed the statute does not undertake to provide a remedy for the taking of property, but only for the damaging of it, and hence defendant’s position is untenable so far as regards the recovery of compensation for the land actually taken by the company. An action of this character has been recognized as the proper remedy when land is appropriated by a quasi public corporation, without condemnation proceedings; and in such a case the plaintiff is allowed to recover not only the value of the land the company appropriated, but also' for the detriment suffered by the remainder of the tract. [Doyle v. Railroad, 113 Mo. 280, 20 S. W. 970; Webster v. Railroad, 116 Mo. 114, 22 g. W. 474; Miller v. Rail-. — 186 — road, 162 Mo. 424, 63 S. W. 85.] And it seems that even where the purpose of the action is to recover only compensation for damage done to property for the use of the public, as in changing the grade of a street, a proceeding like the present is upheld. [Clemens v. Insurance Co., 184 Mo. 46, 82 S. W. 1.] In view of those authorities we hold this case was rightly brought and that plaintiffs are not debarred from maintaining it because another remedy for damage to property is given by statute. We might have some doubt about our jurisdiction of the case had it not been settled by decisions of the Supreme Court. It has been held that, though a proceeding to condemn land for railroad purposes does not, divest, the owner of his title, but only vests in the company an easement in the land for railroad purposes, yet such easement affects the proprietary rights of the owner (State ex rel. v. Rombauer, 124 Mo. 598, 28 S. W. 75); and hence brings the cause within the force of the provisions of the statute giving the Supreme Court jurisdiction in cases involving title to real estate. In other cases the Supreme Court has held that if lands are not taken under condemnation' proceedings by railroad companies, but are appropriated without such proceedings, and the owner sues for their value and recovers judgment, a satisfaction of the judgment will operate to vest in the defendant company an easement in the land as effectually, to all intents and purposes, as if condemnation proceedings had been regularly instituted and consummated. [Webster v. Railroad, 114 Mo. 118; Doyle v. Railroad, 113 Mo. 280, 287; McReynolds v. Railroad, 110 Mo. 484, 19 S. W. 824.] This being true, it would look like the title to real estate was as much affected by, or as much involved in, an action by the owner for damages when his land was appropriated without condemnation proceedings, as it is in a condemnation proceeding, and that if .the juris — 187 — diction is in the Supreme Court in one case, it is in the other. But in Edwards v. Railroad, 148 Mo. 518, 50 S. W. 89, which was an action like this one, and brought by the owner of land to recover damages on account of the construction of a railroad through it and the appropriation of a strip one hundred feet wide, the Supreme Court held the title to real estate was not involved or affected within the meaning of the clause giving it jurisdiction, and transferred the cause to the Kansas City Court of Appeals. The important question on the appeal and ¡the main controversy between the parties, is as to whether Mrs. Pratt owned a fee in the land taken by the company or merely a life estate. The answer to this, question turns on the construction of her father’s will by which the lands in question were devised to her and under which alone she claims title. She and her husband have two children and it is argued for the company that the.. will gave her only a life estate in the land with a remainder over to her children. The court below rejected the theory of defendant that Mrs. Pratt took a life estate and held that she took the fee. It is apparent this ruling affected the amount of damages plaintiffs were entitled to recover; for the value of her interest in the -strip appropriated would be different if she held only a life estate with the remainder over, from what it would be if she owned the entire fee. [Corrigan v. Chicago, 21 L. R. A. 212, note pp. 218, 220; Passmore v. Railroad, 9 Phila. 579; Miller v. Ashville, 112 N. C. 759; Boston v. Robbins, 121 Mass. 453; Harrisburg v. Crangle, 3 Watts. & S. 460; Railroad v. Dyer, 35 Ark. 360; Railroad v. Baker, 45 Ark. 252; Knapp v. Railroad, 53 N. Y. S. R. 571; Thompson v. Railroad, 130 N. Y. 360; In re Daly, 51 N. Y. Supp. 576; Elledge v. Railroad, 38 Am. St. Rep. 290.] Few questions have given rise to more litigation and perhaps to more discordant decisions, than the question of whether titles — 188 — in fee simple were vested in tbe first takers under devises in various wills. Our Supreme Court bas bad occasion to pass on numerous controversies involving tbe point, and we need not go outside tbe decisions in this State for light on tbe clause of tbe will we must construe. It will be.observed that in tbe fourth paragraph, John Lorenz declared be devised to bis daughter, Anna Pratt, and her heirs, two hundred and sixty acres more or less lying on tbe Saline in St. Genevieve county. This is tbe land in controversy. In tbe same clause of tbe will, tbe testator provided against bis daughter Anna selling or contracting any debts on tbe land devised, and also against her heirs doing so for fifty years after bis death; further that bis daughter should divide tbe lands equally among her heirs, and if she failed to do this, there should be a commission appointed to divide them. Tbe devise was to Anna Pratt and her heirs; but tbe latter words never were necessary to pass by will a fee simple title, and are not necessary under our statutes even to convey a fee by deed. [R. S. 1899, sec. 4590.] Hence in law they add nothing to tbe quantity of tbe estate granted or devised, but may be material in ascertaining whether tbe intention was to vest a life estate or a fee when tbe purpose is dubious. If tbe first sentence of tbe fourth paragraph of tbe will in question stood alone, we would not hesitate to say tbe devise was in fee to Anna Pratt, and that the Avords “her heirs” were used by tbe testator according to tbe ancient phrasing, with tbe intention of limiting a fee simple estate to her and not to limit a life estate to her with a remainder over to her heirs. But there are other sentences in tbe same paragraph which bear materially on tbe point in band and clearly indicate tbe purpose of tbe testator was to give bis daughter only a life estate. Great stress bas been laid in many opinions construing wills, Asdiere tbe question was between a life estate and a fee simple, on — 189 — the fact that the first named devisee was given absolute power to sell and dispose of the property, which power carries the fee unless the demise is, in express words, given for life only. [Green v. Sutton, 50 Mo. 186.] In the present will, instead of that poAver being granted to Mrs. Pratt it was withheld. She was prevented from selling the land and a restriction was laid on the right of her heirs to sell or incumber it for fifty years after the 'death of the testator. It is true this restriction is void as opposed to public policy (Kessner v. Philips, 189 Mo. 515, 88 S. W. 66); but though the law may reject it as an unwholesome restraint on the power of alienation, it may be taken into consideration as one circumstance throwing light on the intention of the testator. It is certain his intention was to prevent Mrs. Pratt from selling or mortgaging the land, and this argues that his purpose was not to give her the fee. It is true the restriction is inconclusive on this point; but whatever force pertains to the grant of power to freely dispose of the property, as an argument that a devise to which the power is annexed, is a devise in fee, is lost in the present instance. We may be sure, in view of the restriction on selling and mortgaging, that the testator intended the land should remain intact and undivided during the life of Mrs. Pratt and should pass to her heirs at her death. This view is still further enforced by the next sentence, which directed her to divide the land equally among her heirs, and directed, further, if she failed to do so, commissioners should be appointed to divide it. These sentences which occur in the devising paragraph, indicate the purpose of the testator was to give his daughter only a life estate with a remainder over to her heirs. The requirement of an equal division of the land among the heirs was incompatible with a purpose to give it to Mrs. Pratt in fee, for she was deprived not only of the power to sell or mortgage, but to devise it as she might wish. It is — 190 — true that in other paragraphs of the will, in which he made devises to other children and their heirs, the testator used the words “their direct heirs;” thus clearly signifying an intention to devise a life estate to the first taker with a remainder to the children. And in these paragraphs he laid the same embargo on the conveyance of the land for fifty years after his death, that he did in the clause devising to Mrs. Pratt, and directed a division of the land among the heirs of the first devisee; sometimes using the phrase “among his children” instead of “among his heirs.” From this circumstance it might be argued that the testator knew how to create a life estate in his children with a remainder over to his grandchildren, and employed more appropriate language to accomplish his purpose than we find in the clause devising to Mrs. Pratt. And. no doubt there is force in this argument. On the other hand there is some force in the argument that he used the words “children”- and “heirs” interchangeably. But these are minor indications of the testator’s intention, which is to be gathered from the whole will; and we think the controlling indications are that he expressly forbade the plaintiff and the other devisees to sell or mortgage their portions, and directed them to divide them equally among their children, with provisos that if they failed to carry out this direction, commissioners should be appointed to carry it out. In Cross v. Hock, 149 Mo. 352, 50 S. W. 786, the widow contended she took a fee simple estate under her husband’s will, pointing to passages in the will suggesting that the testator knew how to create a life estate by proper technical words, and seeking to deduce the inference that he did not intend to create such an estate in the widow "from his failure to use appropriate words. But this argument was rejected as inconclusive, because the will as a whole was drawn with the evident purpose to ere191 ate a life estate; and for tbe same reason we reject it in this case. It would be useless to review elaborately tbe authorities cited in tbe briefs touching tbe point of law at issue, though we have read them all. They have been reviewed time and again by tbe Supreme Court in opinions which we will cite, and tbe differences pointed out between tbe words used in those devises which were held to pass an estate in fee simple, and tbe words used in devises held to pass only a life estate to tbe first devisees with remainders over. Therefore our examination of tbe cases will be concise. Perhaps they are not entirely consistent, but we think most of them may be reconciled by careful attention to tbe language employed in tbe wills construed. When tbe estate given to tbe first devisee has been regarded as a fee simple, it will be found either that it was given unqualifiedly and by proper technical words, to tbe first taker as an estate in fee simple, and in á subsequent part of tbe will there was an attempt to cut down tbe fee to a life estate and limit a remainder over; which cannot be done without express words, or at least an unmistakable intention (Yocum v. Siler, 160 Mo. 281, 298, 61 S. W. 208; Sevier v. Woodson, 205 Mo. 202, 104 S. W. 1); or it will be found that though terms were used which might, standing alone import only a life estate in the first devisee, there' were united with these words other' words conferring power to dispose of the entire estate — an authority incompatible, with the intention to devise no more than a life estate to the first taker; or else some other phrase was used which clearly imported that the entire fee was devised instead of a freehold for life. We are cited by counsel for plaintiffs to the following cases as supporting their proposition that Mrs. Pratt took a fee simple under her father’s will. [Small v. Field, 102 Mo. 104, 14 S. W. 815; Yocum v. Siler, 160 Mo. 289; Roth v. Rauschenbush, 173 Mo. 582, 73 S. W. — 192 — 664; Roberts v. Crume, 173 Mo. 572, 73 S. W. 662; Young v. Robinson, 122 Mo. App. 187, 99 S. W. 20.] An attentive reading of those cases will reveal either that the wills construed gave the property 'devised to the first devisees and his or her children, without more, as in Small v. Field, 102 Mo., supra; or that the property was given absolutely to the first devisee with merely a proviso that if he died without issue the land should pass to other named devisees, as in Yocum v. Siler, 106 Mo., supra; or that the property was given to the first devisee and his or her heirs on some subsequent condition to be performed by them, as in Roberts v. Crime, 173 Mo., supra; or that there Avas an* expressed, or clearly implied, power in the first devisee to dispose of the property as he saw fit, as in Young v. Robinson, 122 Mo. App. 187; or that the property was given to the first devisee, his heirs and assigns • thereby importing a power to dispose of it, as in Gannon v. Albright, 183 Mo. 238, 81 S. W. 1162. The words of the present devise are very different from those contained in any of the Avills held by the Supreme Court to pass the fee simple to the first devisee, and bring this case within the scope, not of the authorities cited for plaintiffs, but of the following decisions of the Supreme Court: Chiles v. Bartleson, 21 Mo. 344, in which there was a devise, to the testator’s wife, with a proviso that the bequest given to the wife should, at her deáth, be equally divided among the testator’s four children; Russell v. Eubanks, 84 Mo. 83, where there was a re-, stricted poAver of sale given to the first devisee, and Bean v. Kenmuir, 86 Mo. 666, in which the land was deeded to the first devisee for her sole use and benefit, to have and to hold ... to her and her heirs and assigns thereafter, and in case of the death of the first •devisee, then to pass with all its rights and privileges to her husband; Harbison v. James, 90 Mo. 411, in which the Avill gave the testator’s widow all the prop — 193 — erty, real and personal, with power to sell and reinvest any part sbe might desire for her separate use and benefit, leaving the remainder existing at the time of ber .death to his three daughters; that is to say, only a limited power of disposition was given to the widow; Munro v. Collins, 95 Mo. 183, 7 S. W. 461, in which practically the same limited power of disposition was conferred on the widow; Schorr v. Carter, 120 Mo. 409, 25 S. W. 538, in which the property was devised to the wife without any express power of disposition, but with a proviso that at her death -whatever property had been given her should be equally divided among her and the testator’s relatives or heirs; McMillan v. Farrow, 141 Mo. 55, 41 S. W. 890, in which the property was given absolutely to the testator’s widow with full power to dispose of all or any part thereof at her option, but with a clause limiting the remainder as the testator’s property (“my property”) to other devisees after the death of the widow; which the Supreme Court said signified that the testator regarded his wife’s own ership as not extending beyond a life estate; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786, in Avhich the property was limited after the death of the testator’s wife to whom the property was expressly given for life, to his daughter and her heirs; but to be subject to the control of a trustee for the use of .the daughter, with a direction that if she died without children, it should be divided among the testator’s other daughters. It was held the will showed a clear intention not to give the daughter first named a fee simple estate, but only a life interest, with a limitation over at her death to her children. The Hoch case bears strongly on the proper construction of the present will, both on the question of whether it vested only a life estate in Mrs. Pratt, and the further point that the word “heirs” may be taken to mean “children” when the entire will and the facts attending — 194 — its execution, make that its natural meaning. The case of Dozier v. Dozier, 183 Mo. 137, 81 S. W. 890, is also analogous. In said cause tbe testator, by a clause of bis will, gaye tbe bulk of bis estate, consisting of stocks, to a trustee with unlimited power to sell and reinvest, and instructed tbe trustee to pay tbe dividends to certain beneficiaries, providing that on tbe death of any one of tbe beneficiaries, bis or ber descendants should be entitled to bis or ber share, free from tbe trust; and, further, that if any beneficiary died without descendants, tbe part of such beneficiary should go into tbe residuum of tbe estate and tbe residuum should go ab-. solutely to tbe beneficiaries of tbe estate. It was held tbe will created a life estate in tbe stock for tbe benefit of the benefiearies named, and that on tbe death of one of them bis widow bad no dower therein. And such was tbe decision though in other clauses of tbe will tbe testator bad devised life estates in express and technically appropriate words. In our opinion the purpose of Mrs. Pratt’s father to devise ber only a life estate is perfectly clear from the language of the paragraph containing* tbe devise and, therefore, tbe judgment is reversed and tbe cause remanded. All concur.