58 Mo. 265 | Mo. | 1874
delivered the opinion of the court.
This was an action of ejectment to recover the possession of a house and a parcel of land named in the petition.
The petition was as follows, to-wit: “ Plaintiff states that by an act of the General Assembly, entitled, ‘ An act to incorporate the Cape Girardeau and Bloomfield Macadamized and Gravel road Company,’ approved Oct. 25th, 1857, plaintiff was duly incorporated. Plaintiff states, that on the 1st day of July, 1873, they were legally entitled to the possession of a certain building known as the Allenville toll house, situated in said county, at Allenville, and the ground on which the same stands, and being so entitled to the possession thereof, afterwards, to-wit: on the 2d day of July, 1873, this defendant unlawfully and wrongfully entered thereon, and wrongfully and unjustly detains plaintiff from the possession thereof, to plaintiff’s damage in the sum of five hundred dollars. Plaintiff states - that the monthly rents and profits of said realty are reasonably worth twenty-five dollars per month. Plaintiff demands judgment for the restitution of said premises, and for five hundred dollars for their damages, so as aforesaid had and sustained, as well as for twenty five dollars per month, monthly rents and profits.”
The answer was a denial of the facts stated in the petition. A trial was had by the court, a jury having been waived by the parties.
On the trial the evidence introduced by the plaintiff tended to prove that those under whom the defendant claimed title to the premises in controversy-, were, in the year 185é, in possession of and claiming a tract of land adjoining a river or
By the eleventh section of the act the company was authorized to receive by deed, gift, purchase or other convey-
The 12th section of the charter of plaintiff provided as follows : “ It shall be lawful for said company to own in fee simple or otherwise, along the line of said road, or at any termination of the same, pieces and parcels of land for the purpose of procuring timber and other materials from the same for the use of said road, and for erecting thereon toll houses and for other purposes; and said company may at any time sell such tracts or parcels of land, or any part thereof, executing to the purchaser or purchasers a conveyance ip mariner prescribed by law regulating conveyance by corporations.”
It is also further provided by said act, that if the necessary materials cannot be otherwise had for the construction of the road, the company may enter upon adjoining lands and take the necessary materials by paying therefor in a manner provided for in the act, etc.
The evidence produced by plaintiff tended to further prove that the plaintiff surveyed its road in the year 1857 or 1858, but that it did not construct its road and occupy the same at the point where the toll house was erected, or within several miles thereof, until the year 1866, at which time the road was constructed on the line and route of the county road before spoken of, and a new bridge constructed on the same abutments erected by the county for the bridge which had before been washed away; at which time (in 1866) the plaintiff erected the .toll house in controversy, which was constructed within about thirty feet of the centre of the artificial road constructed by plaintiff, and near the bridge; that the plaintiff only claimed to locate its road forty feet wide; that the defendant knew of the erection of the toll house at the time it was erected ; that the house had been occupied for
The defendant, on his part, offered in evidence a deed from T. M. Powell to Michael Rodney, dated the 10th day of January 1842, which purported to convey a tract of land to said Rodney, which included the land on which the toll house in controversy stood, as well as that part of plaintiff’s road adjacent thereto. This deed was objected to by the plaintiff, because it was acknowledged and recorded in Stoddard county and not in Cape Girardeau county, and could therefore impart no notice to plaintiff, and because defendant was estopped, he and his predecessors having permitted the right of way to be used for a county road.
These objections were overruled, and the deed read in evidence, to which the plaintiff excepted. The defendant then read in evidence several deeds, through all of which a title to' said land was conveyed or purported to be conveyed and vested in the defendant. These deeds were each objected to as they were introduced, on the same ground of estoppel urged to the deed from Powell to Rodney. The objections were severally overruled and exceptions taken.
The defendant then introduced evidence tending to prove that he and those under whom he claims to derive title had been in possession of said lands for from twenty-five to thirty years before the. commencement of the suit, claiming the same; and that the toll house was not erected or occupied until the year 1866, and that the house was erected with the knowledge of defendant and his grantors. The foregoing was substantially all the evidence in the case.
At the close of the evidence the court, at the request of •the plaintiff, declared the law to be as follows: 1st. “ The
3d. “ The jury is instructed if they believe from the evidence that the County Court of Cape Girardeau county appointed commissioners to view and locate a public road from the city of Cape Girardeau to Bloomfield ; and if they further believe from the evidence that such commissioners did view and locate said road, and did make a report to said court, and that said report was by said court approved; then the route so selected and approved became and was a public road of the county, and the plaintiff had, with the consent of the County Court, the legal right to take and occupy said road or any part thereof, for the use and purpose of constructing their road.”
6th. “ The jury is instructed that if they find for the plaintiff, they will, from the evidence, assess the damages plaintiff may have sustained in any sum not exceeding five hundred dollars. The jury will also from the evidence find the value of the monthly rents and profits of the premises in question; and if the jury believe from the evidence, that plaintiff, by the alleged wrongful and illegal act of defendant, was obliged to rent and fit up for a toll house other premises in the place of the one so taken, the measure of damages will be the reasonable amount plaintiff was obliged to pay for fitting up, ■and rent of the premises plaintiff was so obliged to rent and fit up.”
To the giving of these instructions, or declarations of law, the defendant at the time objected and excepted.
The court at the request of the defendant, declared the law to be as follows, to-wit: 1st. “ The court finds the law to be, that before the plaintiff can recover in this case, it must show title to the premises. 2nd. And further, that title may‘be acquired by an open and continuous possession, adverse and hostile to all persons whomsoever, of the defendant and those
And the court refused to declare the law in connection with the foregoing, as follows : “And further that, although the county may have acquired the title to the premises legally, yet that the county could not convey the said road to a private corporation.”
The defendant excepted to the action of the court in refusing this last declaration of law. The court then found for the plaintiff, and rendered a judgment in its favor for the possession of the premises, and for the sum of seventy-two dollars and fifty cents damages, and for rents and profits, etc.
The defendant then filed a motion for a new trial, which being overruled, he appealed to this court.
Previous to an examination of the main and most material points involved in this case, it will not be amiss to briefly refer to the objections made by plaintiff to the admission of the deed from Powell to Rodney, read in evidence by the defendant. The objections were: 1st. That the deed had not been recorded in Cape Girardeau county; and 2d. That the defendant, by his acquiescence in the use of the strip of land by the county as a county road, was estopped from denying the right of the county and those claiming under the county, to the land included in the road.
The -second objection to the deed is the same objection which was made to all of the defendant’s evidence. The objection assumes that the county of Cape Girardeau had acquired a title to the land in controversy by estoppel, and that the plaintiff, as the successor of the county, acquired the rights of the county and could insist on the estoppel. It seems to me that this assumption or objection is founded on a misapprehension of both the facts and the law. The plaintiff in this case, if it has any right in the road bed of its road, did not derive that right from Cape Girardeau county; but from the act of the legislature creating its corporate existence. The plaintiff was authorized by that act to locate- its road over and upon the route of the county road ; but neither the county nor the State attempted to convey any right to the land on which the road was located to the plaintiff; and therefore the plaintiff could not avail itself of any privileges which had been conceded to the county, to justify it in converting the land belonging to individuals (only subject to the easement of a county road) to entirely .different, purposes. The plaintiff had a right to locate its road on the county road, but in doing so, in order to acquire a title to the land, it should have proceeded under its charter to appropriate the land necessary for its legitimate purposes. And, moreover, this question of estoppel depended upon the facts of the case, and could .not be assumed as a matter of law, until the facts were found by the court.
The second objection urged to the action of the court, grows out of the giving and refusing of declarations of law/ asked for by the respective parties. It is difficult to see from the declarations of law made and refused by the court, upon
The declaration of law numbered three, given by tlie court for the plaintiff, assumes that if the County Court bad located a road over the defendant’s land, the plaintiff, under its charter, had aright, with the consent of the County Court, to take, use and occupy said road for the uses and purposes of its road. And the court refused to declare the law as asked for by the defendant, to the effect, “ that the fact that the county may at one time have opened a road over the premises, cannot avail the plaintiff until some privity is shown to- exist between the county and the company.”
It would seem from the giving of the first of these declarations of law and refusing, the last, by the court, that the’ court entertained the'idea that the plaintiff could, by virtue of the power given it in its charter to locate and construct its road upon and over any county road, locate and construct its road over and tipdn. any county road regardless of the fights of the owners of the land through which the road was located, or in other words, that the act of the legislature in such cases had the effect to transfer the title to the land,-upon.' which the county road had been located, to the plaintiff.
It is however argued by the plaintiff, that the defendant stood by and saw the appropriation of the'land for road purposes, and made no objection, and that defendant knew when the toll house was erected, and did not forbid its erection ; aud that therefore he is estopped fro.pi settingup any title to the property as against plaintiff. It has already been stated that it makes,no difference whether tlie defendant consented to the easement over his land created by a county road, the title to the land would still remain in him, only subject to the easement.
It is true that it has been held by this court, that where an individual is proceeding under the law to have damages assessed for the right of way over his land for the use of the road bed of a railroad, and stands by and sees the road constructed and put in operation, such conduct amounts to a license to the railroad company to occupy the land, and that after large sums of money have been expended in the construction of the road and putting* it in operation, the owner of the land' cannot abandon his claim for damages, and bring ejectment to recover possession of the road bed ; that the license thus given cannot be so revoked as to turn the road company into a trespasser; but that such a party has other remedies to which he may resort for the enforcement of his rights. (Provolt vs. The Chicago, Rock Island and Pacific R. R. Co., 57 Mo., 256.)
The present case does not seem to come within the rule laid down in that case. No such license was pleaded or relied on. The evidence only shows that the defendant knew of the erection of the house. There is no evidence that even tends to show that the defendant knew that the toll house was erected outside of the strip occupied as a road bed, by the plaintiff, as the evidence strongly tends to prove; but this is a question of fact to be tried With the other facts upon
The last point necessary to be noticed in this case is as to the measure of damages fixed by the court. In the 6th declaration of law as given by the court, on the part of the plaintiff, it is declared that the measure of damages to be recovered by the plaintiff, if the finding is in bis favor, “will be the reasonable amount plaintiff was obliged to pay for fitting up and rent of premises plaintiff was obliged to rent and fit up.” This rule of damages is clearly wrong. The damages as fixed by our statute in such cases are, where no waste is shown, the rents aqd profits down to the time of assessing the same, or to the time of the expiration of plaintiff’s title, etc. (Wagn. Stat., 1870, p. 560, §13; Cutter vs. Waddingham, 33 Mo., 269.)
Because, from the declaration of law given, it appears that the court tried the case on a wrong theory as to the law, and also improperly declared the rule of damages in such cases, the judgment will be reversed and the cause remanded ;