249 S.W. 387 | Mo. | 1923
This is an ejectment suit brought by the plaintiff for the possession of the south half of Lot 2 in Block 10 of John E. Powell's 4th Addition to the city of New Madrid, Missouri, and for damages and monthly rents and profits.
This case was submitted to the court upon the following agreed statement of facts, to-wit:
"It is hereby agreed and stipulated by and between the parties to this action by their respective attorneys, Henry C. Riley, Jr., attorney for plaintiff, and George H. Traylor, attorney for defendant, that this cause shall be submitted to and determined by the court upon the following facts:
"That on December 21, 1908, one Emma Lesieur was the owner of the land described in plaintiff's petition, to-wit: South Half of Lot 2 in Block 10, John E. Powell's Fourth Addition to the city of New Madrid, Missouri, situated in New Madrid County, Missouri.
"And that on said day for a valuable consideration the said Emma Lesieur conveyed by warranty deed said lot to the plaintiff herein. That said deed was duly acknowledged and filed for record the same day as executed, and recorded in the land records of New Madrid, County, Missouri.
"That afterwards on January 3, 1912, the plaintiff, George Allen, and wife, by a warranty deed duly acknowledged, *547 filed for record the same day as executed, conveyed said land described in the petition to the St. Louis Missouri Southern Railroad Company, a corporation. And that no reservation was made in said deed as to the use to which said land was to be put by said grantee.
"That afterwards on the ____ day of ____, 1916, one M.J. Cochran was duly appointed receiver of said Missouri Southern Railroad Company by the Circuit Court of New Madrid County, Missouri, that said Cochran qualified as such, took charge of said road and all its property and fully discharged his duties as such and was on the ____ day of September, 1918, finally discharged as such.
"That on January 2, 1918, an order of sale was made by the judge of the circuit court aforesaid, in vacation, authorizing said receiver to sell the property of said St. Louis Missouri Southern Railroad Company.
"That thereafter on February 5, 1918, said receiver made a report to said court of said sale made under said order, and on the same day said report was in all things approved by said court.
"That on February 7, 1918, said Conran, as receiver under said order of sale aforesaid, by his deed as such, conveyed said land to Joseph Greenspon Sons Iron Steel Company. That said deed was duly filed for record on said day, and recorded in the land records of New Madrid County, Missouri.
"That thereafter said Joseph Greenspon Sons Iron Steel Company, by its quitclaim deed, conveyed said land to Thomas Gallivan; that said deed was duly filed for record, and recorded in the land records of New Madrid County, Missouri.
"And that thereafter and before the filing of this suit the said Thomas Gallivan and wife, by their quit-claim deed, conveyed said land to one George V. Montague, and that said deed was duly recorded in the land records of New Madrid County, Missouri.
"That the defendant Joe Beasley was in possession *548 of the premises at the institution of this action and still holds possession of the same as the tenant of George V. Montague, the grantee in the above-mentioned deed.
"That the Public Service Commission of the State of Missouri by its order of record made on the 25th day of February, 1918, authorized the said Joseph Greenspon Sons Iron Steel Company to abandon the operation of said railroad, and to remove the tracks, rails and equipment of all kinds from the right of way of said railroad company.
"That immediately upon receipt of said order aforesaid said operation of said railroad was stopped, the tracks, rails and equipment of all kinds were removed from said right of way and that the said railroad has not since been operated as such; that all of said property was removed, and the same, the railroad, abandoned.
"It is further agreed that if the court finds for the plaintiff it may assess plaintiff's damages at the sum of one cent, and the monthly value of the rents and profits of said premises is one cent."
I. The agreed statement of facts show that George V. Montague was the record owner of this property at the time the suit was instituted, and that the defendant Beasley was hisParties. tenant; the former not having been made a party to the suit, the defendant contends that the court had no jurisdiction of the case for the reason that Montague's property cannot be taken from him without his being made a party.
That contention is unquestionably true, but that has nothing to do with jurisdiction in this case, for the suit is against Beasley and he alone can be affected by the judgment, and the fact that Montague is not a party to the suit does not affect the jurisdiction of the court over Beasley and his interest, though possessory, in the property. This contention is decided in favor of the appellant.
II. The real question in this case hinges around the contention as to whether or not when a person conveys *549 land to a railway company, as in this case, the title thereto reverts back to him when the land ceases to be used for railroad purposes.
The appellant holds to the affirmation of the proposition and the respondent to the negative. Clause 2 of Section 9850, Revised Statutes 1919, reads: "to take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railroads; but the real estate received by voluntary grant shall be held and used for the purpose of such grant only."
In discussing the question now under consideration this court in the case of Kellogg v. Malin,
"That a fee simple may be taken and acquired through the exercise of the power of eminent domain may be conceded. But that, I apprehend, would be where an absolute and unconditional price was paid for the property. In determining the consideration to be paid by these roads for the right of way, the benefits and advantages accruing to the owner are taken into the calculation. The benefits and advantages, then, are considered as forming part of the purchase money.
"But suppose the road, after it is started, ceases to exist, and its operation is abandoned, will the land revert back to the owner, or may the road keep and dispose of it for a purpose entirely different from that had in view when it was commenced? It seems to me there can be but one answer to this question. There might be cases where the commissioners and the court would not award the proprietor anything more than nominal damages, believing that the benefits would be greater than the value of the land; and in such a case, if the road should cease or be abandoned, the owner would be deprived of his estate without any compensation. In the matter of highways, where lands have been taken and appropriated in this way, it has never been held that anything more than an easement passed by the condemnation and the payment of the amount of damages assessed. *550
"The use is vested in the public, but the reversionary title still continues in the owner of the soil. In my opinion, notwithstanding the language used, nothing more than an easement passed to the road, giving it perpetual and continuous title so long as it used the land for the purpose for which it was taken, but, when that use was abandoned, then it would revert back to the owner of the premises."
Regarding the same point this court in the case of Chouteau v. Mo. Pac. Ry. Co.,
"The like view has been announced in Minnesota as to the effect of a statute of that State which professedly authorized the acquisition of an `absolute estate in fee simple,' whereas, by the constitution of that State, the condemning company was only authorized to acquire `a franchise of way' and it was held that the effect of the constitutional provision was to so limit the effect of the statute as to permit the company to acquire, not the fee simple title, but only an easement. [Scott v. Railroad,
"These cases proceed on the familiar principle that what the law will imply in an express contract is as much a part and parcel of it, and as much to be dwelt on in construing it, as if stated in such contract in direct terms. [Whincup v. Hughes, L.R. 6 C.P. 78; Bishop on Contr. (Enlarged Ed.) secs. 241, 253, 439.] In this case, then, the law itself incorporated into the deed made by Guinotte those conditions and restrictions which the charter of the company intended should govern, and limited the uses to which the land granted should be applied.
"It necessarily results from these authorities that the interest which the Pacific Railroad Company derived from Guinotte was but an easement, a right of way, and not a title, (Union Depot Co. v. Frederick,
"This point alone is decisive of this case, and is a sufficient answer to the contention of plaintiff's counsel as to the construction put by this court on Nye v. Railroad,
"In Nye's Case the railway company obtained the entire fee, by reason of the deed made, `just as a natural person would do,' and the corporation could convey the land thus obtained, when no longer necessary for its purposes, to whomsoever it would. Not so in the case at bar; no fee was obtained only in from and outward semblance; not in fact or in law. And whatever right was acquired by the defendant company or its predecessor could not have been disposed of, except as a whole, and not in detached or fractional portions; and when disposed of could only have been disposed of to another railroad corporation for those uses, and those alone, for which the original grant was made. The attempt to divert the subject of the grant to other purposes would result in reversion to the last owner of the premises. [Pierce on Railroads, 158.].
"In the second place, the charter uses the term `owner' when providing for voluntary relinquishment or condemnation of property. With the expection of the curator of minors, he was the only party known to the law with whom the company need treat with the view of purchasing, or, failing in such negotiation, need bring before the judge or court in order to take the land by virtue of the power of eminent domain.
"On this point, a recent author of acknowledged merit says: `The word `owners' is generally employed in the statutes as describing the persons who must be made parties to proceedings to establish roads or streets. In order to carry into effect the purpose of the statute and to give just force to the provisions of the Constitution, the term `owners' should be construed to mean all who have an estate in the land and whose interests appear *552 of record. This would require that all who have vested estates should be made parties, but would not apply to those who have mere liens or inchoate interests. Under the operation of the rule it would not be necessary to make a married woman having an inchoate interest in the lands of her husband a party to the proceeding. The principle upon which the doctrine that a wife need not be made a party rests, is, that the right to dower, or to an estate in the lands of the husband, is a right created by law and not by contract, and that it is not vested until the death of the husband. [Elliott on Roads and Streets, 235.]
"Now, in this case, at the time of the transfer by Guinotte, to the Pacific Railroad Company, he was the owner of, and represented, the fee, and compensation to him was all that was necessary. This is the rule, where the husband then being the owner conveys the fee, and it is difficult to see why the same rule should not apply where the conveyance is made by any other owner representing the fee, since in either case, the inchoate interest or possibility of the wife is not taken into account, the law possessing no scales and owning no machinery whereby such possibilities and expectancies can be weighed or estimated. [Mills on Eminent Domain (2 Ed.) sec. 71, and cases cited.]
"If the Pacific Railroad Company had been compelled to resort to proceedings in invitum to obtain the right of way, Guinotte would have been the only party that could have been brought into court, or against whose land a judgment of condemnation could have been rendered; this being the case, it is not easy to see why his deed should not be as effective in conveying a right of way or easement to the Pacific Railroad Company as such, divested of all inchoate rights and interests as would result from the deed of a husband in similar circumstances; and, that such is the operation of the deed of a husband, we have already declared in Venable's Case, supra. Indeed `there seems no good reason, why a voluntary performance of an act to which the party is compelled *553
by law, should not have the same effect as is produced by compulsion.' [Potter v. Wheeler, 13 Mass. l.c. 507.] Again, it was competent for the Legislature, in express terms, to have destroyed all inchoate rights and interests in condemnation proceedings; this is attested by abundant authority; but, by singling out the `owner' of the property as the only party necessary to a deed of relinquishment or to condemnation proceedings, the legislative body has impliedly said that the rights of no other party need be relinquished or obtained. Such an implication necessarily excludes all inchoate interests, possibilities and expectancies; and `what is implied in a statute is as much a part of it as what is expressed.' [United States v. Babbit, 1 Black, 55; Gelpcke v. Dubuque, 1 Wall. 220; Stradling v. Morgan, Plowd. 199; 2 Bishop on Married Women, sec. 63; Bishop on Contracts, sec. 241; State ex rel. v. Board,
And in State ex rel. v. Cape Girardeau Jackson Gravel Road Co.,
"This court, beginning with Kellogg v. Malin,
Also see on this point the case of Boyce v. Mo. Pac. Ry. Co.,
The same doctrine was announced in the case of St. L.I.M. S. Ry. Co. v. Cape Girardeau Tel. Co.,
Counsel for respondent cited the following cases in support of the negative of this proposition: Nye v. Railroad,
We are therefore of the opinion that the judgment should be reversed, and remanded to the circuit court to grant a new trial and to proceed with the case as herein indicated. All concur.
