138 Mo. 464 | Mo. | 1897
This is an action of ejectment in statutory form for the west half of the northwest quar
The answer admitted possession of a strip one hundred feet wide over and across said land amounting to four and sixty-five hundredths acres, and disclaimed ownership and possession of the remainder of said lands. It then proceeded to aver that in May, 1881, its predecessor the Kansas City, Springfield & Memphis Railroad Company under and by virtue of Its charter and the act of Congress of March 3, 1875, granting right of way for railroads, entered upon and took possession of said strip of land, surveyed, located and constructed its railroad thereon, and filed its map showing such definite location as was required by said act of Congress, which map was approved June 17, 1882; that said predecessor company continuously owned and operated said railroad and remained in possession of said strip until April, 1888, when by consolidation it was merged in the defendant company, to which all of its property and franchises were duly transferred, and that the latter company had ever since continued such occupation, ownership and operation.
The answer also pleaded an equitable estoppel against the maintenance by plaintiff of the action of ejectment for said strip of land, and set forth the facts on which this defense was based. The answer also contained a general denial of the allegations of the petition not specifically admitted.
The reply was a general denial, and the case was tried without a jury.
The testimony and admissions of the parties showed the following state of facts:
Prior to April, 1881, the Kansas City, Springfield & Memphis Railroad Company was duly incorporated
The railroad company, in compliance with the terms of the act of Congress of March 3,1875, granting right of way through public lands to railroads, filed its articles of incorporation with, and the same were approved by, the Secretary of the Interior on February 15, 1882, and its map of definite location crossing the lands sued for was approved June 17, 1882, but this land was not described on said map as béing vacant.
At the time this survey was made across said land one O. W. Simpson was living upon it and an adjoining eighty acre tract, having, by entry dated December 17, 1877, homesteaded said west half of the quarter section above described, and also the southeast quarter of the southeast quarter of section 17, and the northeast quarter of the northeast quarter of section 20, in the same township and range. The railroad was surveyed and constructed across this land with the knowledge and consent of Simpson, who was paid by the railroad company for the right of way, and gave it a deed for a portion thereof. Subsequently, but just
In September, 1881, plaintiff Alexander went to live with Simpson on the land homesteaded by the latter, and continued there — part of the time with Simp-' son, and by himself after the latter had left the land— working from time to time on the construction of the railroad, loth before and after moving upon the land. After Simpson’s homestead entry was canceled in March, 1884, plaintiff Alexander hints filf made a homestead entry of the same one hundred and sixty acres of land.
Alexander, the plaintiff, did not testify in his own behalf, but was put-upon the stand by the defendant. He testified that the railroad was being constructed when he went on the land and was completed while he lived there — he thought in 1881, although he worked on the road afterward; Simpson then lived on the land, and he, Alexander, bought the former’s claim; that he had lived on the land ever since, having made a homestead entry thereof in March, 1884, and final proof in November, 1889, and afterward obtained a patent; that he had notified the railroad company two or three times to fence its right of way through his land, but the fence had not yet been built; that at his request the company had put in a crossing in the tracks in front of his house for his convenience. He further said: “I want pay for the damage they have done to this land; that is all I want. I am satisfied with the railroad there, but I want pay for my land.”
The Kansas City, Springfield & Memphis Railroad Company maintained and operated the railroad so constructed by it over said land continuously from 1881 until April, 1888, when it transferred to the defendant
There was some evidence introduced by the plaintiff over defendant’s objection, on the subject of the value of the land used for right of way, but as the judgment did not include any allowance for rents, profits or occupation, the error was harmless.' A plat showing the location of the railroad across this land homesteaded by Simpson and afterward by Alexander, was introduced in evidence.
The plaintiff asked no declaration of law; the court refused each of those asked by the defendant and gave none itself.
On these pleadings and this evidence the court found that plaintiff was entitled to the immediate possession of the strip of land one hundred feet wide occupied by defendant for right of way for its railroad over and across the land described in the petition; that defendant was wrongfully in possession of such land, and that plaintiff should have restitution thereof; and judgment was entered accordingly. Motions for a new trial and in arrest were duly filed and overruled, and defendant perfected its appeal to this court.
1. While the facts of this case somewhat resemble those shown in Kinion v. Railroad, 118 Mo. 577, they differ greatly in some essential points. In that case Kinion entered upon the land in February, 1881, prior to the making of the preliminary survey by the railroad company in April, 1881, and made his homestead entry
We hold that when Simpson abandoned his homestead the lands became disburdened of his homestead claim, and the title of defendant to its right of way became at once perfect so far as the United States was
2. But if we should be wrong in our interpretation of the federal statute, that the legal estate vested in the defendant company upon the failure of Simpson to perfect his title to said homestead, there is still an insuperable barrier to plaintiff’s right of recovery in ejectment. It would be hard to conceive of a stronger estoppel than the facts raised against plaintiff. He declined to testify in his own behalf but was called by defendant and testified that he assisted the defendant in constructing this railroad through this land. He knew the defendant had expended large sums of money in building and equipping its road and that this was a necessary link in its important line; when he made his entry he knew the road ran through the land. He had lived on the land for nearly ten years before he brought this suit and nearly seven after he made his entry upon it under the' homestead act. He requested the company to erect fences along the right of way. He asked to have cattle guards put in and had the company put a crossing in the track in front of his house for his convenience. There was evidence, moreover, that he lived with Simpson when the road was being graded through the tract and attempted, by buying out Simpson’s right, to get the land and there was enough evidence to charge him with notice of defendant’s purchase of the right of way from Simpson under whom he obtained possession. He has stood by without an intimation that he proposed to
The instructions presented this phase of the case and were all refused. In view, however, of the conclusion reached that plaintiff can not recover the right of way by ejectment because he has no title to it, and if he ever had would now be estopped from such a remedy, the judgment is simply reversed.