168 Mo. 90 | Mo. | 1902
— The defendant owns and operates an electric railroad from St. Louis to Meramec Highlands. Its line was projected through certain lands of the plaintiff in St. Louis county, and after the route had been surveyed and selected for its roadbed and right of way, the plaintiff ‘executed and delivered defendant a deed to said right of way, describing it as: “A right of way for railroad purposes through and along a strip of ground fifty feet wide, and beginning at the eastern line of the property herein described 13 feet from the northeast corner and running south 71 degrees .05 minutes
It was stipulated on the trial that the land described in the deed is a part of the southwest qilarter of southeast quarter of section 31, township 45, range 6 east, in St. Louis county.
In this suit plaintiffs seek to have said deed cancelled because they say the conditions in said deed were broken by defendant, 'and the deed is now a cloud on plaintiff’s title. This was denied by defendant.
It was abundantly shown on all sides that the defendant company built its railroad and had it in operation prior to 1896, and that it has never abandoned the enterprise, but was operating the road at the time of the trial. It is too clear for dispute that the one condition of forfeiture mentioned in the deed, to-wit, “the failure or abandonment of the enterprise by the grantee or its successors” has not been broken. Evidently when they used the word “enterprise” they referred to the
And yet this is obviously the theory upon which this suit is brought.
The plaintiff^ testified that he saw and knew the route proposed through his land, and made the deed after the survey; he saw the roadbed constructed, and thought for three years that it was on the exact line defined in his deed, and only learned it was not by a survey made by Yon Borck in 1897, which survey, if conceded to be correct shows the road was constructed on the right of way granted by the deed and attached plat read in evidence by plaintiffs except over the distance from the third and last angle to the end, which in no event exceeds three hundred feet. Eor 1,200 or 1,300 feet from the point of entrance on the north the railroad is shown by Yon Borck’s survey to be on the right of way granted by the deed.
But a failure or mistake in locating the road on this last call in the deed is not made a ground of forfeiture, and the petition is not supported by the deed, or the testimony of plaintiff.
The only evidence upon which plaintiff seeks to have the deed cancelled as a. cloud upon his title is the survey of Yon • Borck, and as already said that survey if correct only shows a deflection on the last call in the deed which runs into the Collins Road. But this is not a condition of forfeiture in the deed.
Notwithstanding plaintiff offered in evidence the plat annexed to his deed it would seem that he desires to repudiate it in his argument. This he can not do. This deed plat shows that the road was built within the right of way called for by the deed, except the distance from the third and last angle, which in the plat is given as six feet and in the deed
Von Borck’s survey, however, does not inform us how he ascertained his starting point, and to reach the conclusion he did in his plat he was forced to make the distance from the last angle to the center line of the Collins Road 98.69 feet, whereas the call in the deed is for twenty-six feet. In other words we have a conflict between courses and distances, not a conflict between fixed monuments and distances or courses. To accept Von Borck’s plat and survey the railroad should pass out of plaintiff’s tract into Collins Road 161 feet south of the point where the tracks now cross the road. Whereas if we follow the call for distances, as marked out in the deed, and make allowances for the fifty feet variation, the tracks will meet where they do now in the Collins Road.
Taking into consideration the fact that the survey was made before the deed was executed it seems clear that if a mistake was made it was in the courses, only, and when the proof shows, as it does in this case, that defendant took possession of the strip it new occupies as a right of way, and constructed its road with the knowledge and acquiescence of plain
Moreover, Sh inkle, another civil engineer, testified that he also surveyed the right of way according to the calls in the deed and found the railroad located on a strip conveyed by the deed.
In Preston’s Heirs v. Bowmar, 6 Wheat. (U. S.) 580, the Supreme Court of the Hnited States, in a case much like this, said: “The construction of the patent is somewhat doubtful. It is susceptible of two constructions, each of which hrs some reasons to support it. If it be doubtful, it would seem reasonable not to press the broadest construction against a party who is now in -actual possession under a perfectly legal title. That possession ought not to be disturbed without a clear title in the other party.”
In view of this state of facts, certain legal consequences follow. It is clear there was no failure of the enterprise and no abandonment by defendant, and the averment of the petition that “the deed contained a provision that in case the grantee failed to occupy and use said right of way . . . it should revert to the grantor” is not supported by the deed. The only ground of reverter in the deed is “a failure or abandonment of the enterprise by the grantee herein”- and it is abundantly established that there has been no- such failure or abandonment. The other provisions of the deed are not followed by any such clause of forfeiture. But there is no proof that the road was constructed elsewhere than on the selected route which plaintiff saw and knew before he made his deed, and if error has occurred anywhere it is in the drawing of the conveyance.
II.
But there is another insuperable objection *to the decree in this case. The object of the bill is to set aside a deed, and divest the title to real' estate, for the breach of a condition subsequent, and to sustain such a suit and overturn a solemnly executed conveyance to land the evidence should be clear, cogent and convincing. [Peters v. Worth, 164 Mo. 431; Sweet v. Owens, 109 Mo. 1.]
There is very little to commend in the attitude of plaintiff. He testified that since the commencement of this suit, he had conveyed this tract “subject to the right of way of defendant,” and yet persists in endeavoring upon extremely technical grounds to divest a title which he had made to defendant with his eyes wide open. He knew exactly where the road was to run. It had been surveyed and marked out before he made his deed. No fraud was practiced upon him to induce him to make the conveyance. He stood by and saw the railroad company expend its money in constructing its road through his land and knew its purpose of connecting its right of way on his land with that on the opposite side of the Collins Road, and never once intimated that it was not built in accordance with his deed. He waited three years and then employed a surveyor to ascertain if the road was constructed exactly on the route conveyed. He found that according to his own surveyor the company had constructed 1,200 or 1,300 feet of a possible 1,500 feet in exact conformity to his deed, and that whether the remaining 300 feet was in compliance
If the bill had been to reform his deed, offering to do full equity, the proofs are wholly inadequate for such a decree. [Sweet v. Owens, 109 Mo. 1; Tesson v. Ins. Co., 40 Mo. 33; 1 Story, Eq. Jur., secs. 157-61; Pomeroy’s Eq., sec. 859.]
We think the decree was erroneous because not supported by the testimony, which in this case consists of surveys principally, and upon which we can form our judgment with as much safety as the trial court could.
We think, moreover, that there has been no such breach of the conditions as would justify a court in sustaining a forfeiture and that the decree erroneously casts a cloud upon defendant’s right of way, and is inequitable in view of the evidence.
The decree of the circuit court is reversed and a decree • entered here dismissing plaintiff’s hill and for costs.