Cochran v. Missouri, Kansas & Texas Railway Co.

94 Mo. App. 469 | Mo. Ct. App. | 1902

ELLISON, J.

This action is to recover the value of a strip of land fifty feet wide running across, near the south end of an eighty-acre tract. Plaintiff recovered judgment in the trial court.

It appears that plaintiff was the owner of the eighty acres of land and in possession thereof. That in 1888 a railway corporation known as the Kansas City, Rich Hill and Eldorado Railway Company began the construction of a railway, and for that purpose agreed to pay plaintiff for a right of way, one hundred feet wide, through that and other land, two' hundred and fifty dollars, one-half cash and one-half in six months. That company failed to make the payment and did not take up the deed which plaintiff had had prepared for delivery. Notwithstanding this, that company went upon the land against plaintiff’s objection and made cuts and fills for a roadbed.

That company afterwards failed and abandoned the land without 'having built the road. Plaintiff retook possession of the strip, fenced it in and used it for pasture down to 1898, when another corporation, known as the Kansas City, Rich Hill and Southern Railway Company, against plaintiff’s objection, entered on the strip, tore down his fences and constructed a railroad thereon. This road was afterwards purchased by defendant, which now operates a railway thereon.

The right of way went through the eighty acres near the south end, the greater part (about seventy acres) of the land was north of the right of way. Plaintiff sold that part to Sallie M. Medlin “lying north of the railway survey of the Kansas, Kich Hill and Eldorado Eailroad, containing seventy acres more or less.” Plaintiff also sold to T. J. Pearce eight acres on the south, describing it as follows: “All that part of the E. 1-2 of the S. W. 1-4 of See. 29, T. 36, R. 29, that lies south of the right of way of the K. C., Eich Hill and Eldorado E. E. containing eight acres more or less.”

It is contended by defendant that plaintiff has shown no interest in the subject-matter of this action, since according to defendant’s view he conveyed the strip by his deed to Sallie M. Medlin. When land is bounded by a street or non-navigable stream or lake, the boundary line is presumed to be the center of the street, or stream, or lake. But if the description discloses an intention not to convey to the center, that intention will control. Mott v. Mott, 68 N. Y. 246; Ins. Co. v. Stevens, 87 N. Y. 287; Kirkpatrick v. Yates Ice Co.,.45 Mo. App. 335; Hardin v. Jorden, 140 U. S. 371. And if the description as written, construing it most strongly against the grantor, leaves the intent in doubt, the court may properly leave the fact to be ascertained by a jury.

The description in controversy is “all that part of the” eighty acres “lying north of the railway survey . . . containing 70 acres of land more or less.” Each party introduced evidence of surveyors and civil engineers to show what the expression “railway survey,” in this connection meant. These witnesses, in a general way, stated the view favorable to the party calling them. The court submitted the meaning as intended by the parties to the jury. It seems to us that such action by the court was as much as defendant could ask for. The most that defendant could reasonably claim in this situation of the case at this point, was that the intent was uncertain. Ordinarily it is presumed that one would have no private use or need for a highway after parting with the land on either side; it would be of no value to him, and, therefore, will be presumed to Lave been deeded to the abutting purchasers. On the other hand, in this ease, the two deeds above referred to contain that which tends to show that the railroad right of way was not intended by plaintiff to be parted with, for the Medlin deed is limited to seventy acres (more or less) and the Pearce deed is limited to eight acres (more or less) thus disclosing that the whole eighty was not intended to be conveyed. But more than this, the strip in controversy had not been acquired by the railroad company as a right of way. There was no easement upon it. It had not assumed such condition as to be of no interest to a private owner, as is the case with streets and highways. •

The court gave an instruction to the jury which directed the allowance of a reasonable value and that, in determining the value they should take into consideration the character of the land, its condition and quality, and the uses to which it might be put. This was a proper instruction. Webster v. Railway, 116 Mo. 114; Mississippi Bridge Co. v. Ring, 58 Mo. 491; Railway Co. v. Heiger, 139 Mo. 315. But the jury in arriving at the value evidently allowed the grading— the construction of the roadbed by the original trespassing company — to be considered as adding to the value of the land. Plaintiff defends this by the statement that the work thus done on his land against his warning and against his consent, became his; and that when defendant came to appropriate the land, it took such added value from him. Plaintiff illustrates his position by the statement that if a trespasser digs a well on his land, and afterwards a railway company condemns the land, he is entitled to the value of the land enhanced (it may be) by the well. We may grant this, but it does not meet the facts in this case. The defendant here is the successor iff claim to the land from the one who constructed the roadbed. If a trespasser builds a house on my land over my protest, it becomes mine. But if I elect, within the period of limitation, to sue him, or those claiming under him, for the value of the land thus appropriated, I can not have the house included in that value, for I have validated his act and he should have the title.

Under the theory that plaintiff was entitled to the value of the roadbed, plaintiff ashed judgment for fifteen hundred dollars; and witnesses estimated the value by going into calculations of the value of the roadbed and of the cost by cubic yards of excavations and fills. The court, however, instructed the jury that plaintiff was not entitled “to recover anything on account of the supposed value or cost of constructing' the cuts and fills.” The jury, nevertheless, allowed plaintiff one hundred and thirty-seven dollars. That sum was one hundred dollars (or more) than the value of the land without the roadbed, as fixed by the evidence. Plaintiff should, therefore, remit one hundred dollars; and if he does so within fifteen days we will affirm the judgment — otherwise it will be reversed and the cause remanded.

All concur.