200 S.W.2d 328 | Mo. | 1947
Lead Opinion
The Eureka Real Estate and Investment Company instituted this action to try and quiet title to a strip of land which in 1900 had been condemned as right of way for a street railway. The strip of land consists of contiguous tracts, one twenty-five feet wide and 200 feet long, the other fifty feet wide and ninety feet long. The theory of the action is that the street railway company's succssor in title, the St. Louis Public Service Company, abandoned the right of way and therefore the title is subject to being quieted and determined. The trial court found that the land had not been abandoned and was yet a necessary part of the maintenance and operation of the St. Louis Public Service Company's street railway system as a whole. The court found that the defendant Union Electric Company's poles and lines were upon the right of way by permission of and for so long a time as the St. Louis Public Service Company continued to use its right of way for street railway purposes. The court also found that the plaintiff, Eureka Real Estate and Investment Company, owns the fee simple title to the land subject to the [330] street railway company's easement. Upon this appeal the plaintiff, Eureka Real Estate and Investment Company, and the defendants, Southern Real Estate and Financial Company, Delmar Investment Company and the Cellas, contend, as against the St. Louis Public Service Company, that the right of way had been abandoned. The secondary question, in which the respondents are *1203 not interested, is whether the court correctly determined the incidence of the fee simple title as between the appellants.
[1] In 1900, upon the petition of the Brentwood, Clayton and St. Louis Railroad, this strip of land through Victor M. Buck's property was condemned and appropriated as a right of way for a street railroad. The petition in condemnation described the course and purpose of the railroad "together with all necessary sidetracks, turnouts, stations, power houses, sheds, yards, poles, wires and other appliances and means necessary and convenient for and appurtenant to the same." Until 1941 the street railway company and its successors, recently the St. Louis Public Service Company, maintained tracks, poles and wires over the strip in question and actually ran streetcars over the right of way. This section of the line was a part of the street railway service into St. Louis County known as the Kirkwood-Ferguson line. In 1941 the streetcar company petitioned the Public Service Commission for authority to "abandon street railway service" over the tract in question. The prayer of the petition was for an "order authorizing the partial abandonment of service over the Kirkwood-Ferguson line." The commission recited that the petition "deals with the abandonment of tracks." Its order, subject to certain conditions, "authorized (the company) to abandon service over" this portion of its Kirkwood-Ferguson line. Accordingly, the streetcar company removed its tracks from this section of the line and ceased operating streetcars over it. If it had not previously become impossible or impractical because of some obstruction to operate streetcars over this part of the line it became impossible, of course, to do so after the tracks had been removed. The appellants point to these facts and urge, as a matter of law, that they show an abandonment of the street railway company's easement and consequently a reverter of the whole title.
They particularly emphasize the petition to and order of the Public Service Commission, the removal of the tracks, the power and real purpose of the street railway corporation and contend that they demonstrate an abandonment and relinquishment of the easement. In urging the point they contend that the case falls within that class of cases in which it became physically impossible to use the easement (Southern Ry. Co. v. City of Memphis, 97 F. 819), as when the access and use contemplated by the easement was destroyed through the exercise of some superior right by others. Central Wharf Wet Dock Corp. v. India Wharf,
But in this case as a necessary part of operating streetcars the company also maintained a power line over the right of way. The power line had been maintained for over forty years and after the tracks had been removed was used to furnish power to streetcars operating over the Kirkwood-Ferguson line. The evidence was that this power line served thirty-three streetcars over forty-five miles of track. Here then the whole purpose for which the easement had been created was not at an end, there was yet a necessary incidental purpose to be served, the supplying of power for the operation of streetcars over that part of the line on which "service" had not been discontinued. Rombauer v. St. Louis-S.F. Ry. Co.,
[2] As against the Union Electric Company the appellants urge that the court erred in holding that it had any right, title, interest or easement to use the right of way. In its answer Union Electric in effect pleaded an easement by prescription but it could not acquire an easement by prescription over this right of way (St. Louis-S.F. Ry. Co. v. Dillard,
Ordinarily the mere oral assertion of a right or interest in land does not constitute such a cloud upon the title as may be removed by a suit to quiet title. 44 Am. Jur., Sec. 14, p. 15; annotation 78 A.L.R. 24, 40, 76; Steinman Development Co. v. W.M. Ritter Lbr. Co., 290 F. 832. But here Union Electric asserts and the necessary effect of the court's decree is to establish and protect a license which, in this case and as against the owner of the servient estate, is some right, title or interest in real property within the meaning [332] of the quiet title statute. It is true that in some senses a license does not create or vest in the licensee an interest in land (Joplin Supply Co. v. West,
[3] It is true that the owner of an easement may in some circumstances, license or authorize third persons to use its right of way for purposes not inconsistent with the principal use granted (51 C.J., Sec. 241, p. 577) and the right so granted may be protected as against certain classes of claims. Missouri P.
L. Co. v. Thomas,
[4] The incidence of the fee simple title as between the appellants may be of but little importance unless and until the Public Service Company's easement is terminated but it is necessarily involved upon this appeal. When the street railway easement was acquired all the land on both sides of the right of way belonged to Victor M. Buck. *1207 Prior to 1911 the appellants, Southern Real Estate Financial Company, Delmar Investment Company, Harriet Cella, John G. Cella, Harriet Donnell and Mae Cella or those whom they represent owned all the land, subject to the street railway easement. On the first day of September 1911 all of these parties, by general warranty deed, conveyed the land by metes and bounds to Cicardi Ravarino Realty Company convenanting that the land was free and clear of any encumbrance done or suffered by them or those under whom they claim. It was stipulated that whatever interest [333] Cicardi Ravarino Realty Company acquired in the land now involved had been transferred to the appellant, Eureka Real Estate Investment Company. The trial court found that Eureka Real Estate Investment Company was the owner of the fee subject to the street railway company's easement.
Southern Real Estate Financial Company, Delmar Investment Company and the Cellas contend that since they owned all the land on both sides of the right of way they did not by conveying the land on one side, described as being bound by the right of way, to Cicardi Ravarino Company also convey title to any part of the easement. They point to the description in the deed as being to the right of way, to the fact that they and their predecessors in title owned all the land on both sides of the easment, to the fact that the deed does not recite that it is subject to the easement and to the covenant in the deed and argue that they clearly express an intention, which must be respected, not to convey any part of the fee simple title to the right of way. In short they contend, in the event the easement is terminated, that the title to the easement or right of way reverts to them and their predecessors in title and not to their grantees of the adjoining land. Yates v. Hathaway, 15 Johns. (N.Y.) 447. But, without going into the reasons for the rule (annotations 2 A.L.R. 6; 70 A.L.R. 564) we are definitely committed to the view that "the fee (subject to the easement) remains in those who owned the land at the time of its dedication to public use, and in theirsuccessors in title; and if ever the streets and alleys are vacated and their public use abandoned, the original owners, ortheir grantees, will thereafter hold the same freed from the burden of the former public use." Roy F. Stamm Electric Co. v. Hamilton-Brown Shoe Co.,
[5] The appellant Eureka Real Estate Investment Company assigns as error the assessment of the costs of the action against it. It was successful in establishing its fee simple title as against the claims of the other appellants. It was unsuccessful in all its claims against the St. Louis Public Service Company. But upon this appeal it was at least partially successful as against Union Electric Company. Therefore the costs should be assessed proportionately as it was successful in the action. Mo. R.S.A., Secs. 1406-1410; Hart v. Wright Lumber Co.,
The judgment as to the St. Louis Public Service Company and as to Eureka Real Estate Investment Company's title is affirmed, otherwise the cause is reversed and remanded. Westhues andBohling, CC., concur.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.
