76 Mo. 115 | Mo. | 1882
A perpetual injunction was decreed by the circuit court in this case, restraining the defendant from removing from the north half of lot 167, in the town of Boonville, that portion of a building used by the defendant as a freight depot, which had been erected on the north half of said lot. There is no controversy in this proceeding as to the ownership-of the north half of lot 167, and the only question is, whether the building was erected Upon the plaintiff’s lot under such circumstances as will entitle the defendant to recover it. The entire structure is seventy-five feet long and twenty-six feet wide, and is surrounded by a platform twelve feet wide. Lot 167 abuts longitudinally upon Second street, along which the defendant, as lessee of the Boonville, St. Louis & Southern Railway Company, operates a railroad. The depot building is situated upon the west side of lot 167, adjoining said street and near the center of said lot, and extends thirty-one feet
When notice of proceedings to condemn was given, the plaintiff and James H. Lucas were shown by the record of deeds to be tenants in common of said lot, and said company, during the pendency of those proceedings, entered into negotiations with said Lucas, who was also agent of the plaintiff for the purpose of making sale of her property, and neither of whom lived in Boonville, to purchase the lot. Mr. Lucas referred them to one William M. Ells, of Boonville, for the sale of the lot.
It appears from the record that on the 15th day of June, 1868, the plaintiff released to James H. Lucas her interest in the south seventy feet of said lot, (for convenience we will call it the south half of said lot,) and by deed of the same date James H. Lucas released to plaintiff all his interest in the north half thereof. These deeds were acknowledged respectively on May 10th, 1869, and January 4th, 1869, and were both recorded on October 10th, 1870. On July 18th, 1868, James H. Lucas conveyed the south half of said lot to Clemenee Ells, wife of W. M. Ells. This deed was acknowledged January 4th, 1869, and recorded January 15th, 1869, and was probably delivered between the last-two mentioned dates.
The president of the Osage Valley & Southern Railroad Company, and Wm. M. Ells had several interviews m regard to the sale of the lot, the precise dates of which
It was shown that Ells lived near the depot and made
It is stated in a leading woi'k on real property, that in respect to the property in buildings erected by one man upon the land of another, the law is well settled, that if a building be erected without the assent and agreement of the land-owner, it becomes at once a part of the realty .and is the property of the owner of the freehold. Washburn, vol. 1, p. 5. In Ewell on Fixtures, it is said, that “ a building or other annexatio# placed upon the land of another without bis previous consent, and without any contract with him, express or implied, that it may remain the property of the builder, as a personal chattel, becomes a part of the realty, and may not be moved by the party erecting it, or bis vendee, as against the owner of the soil.” p. 57. Tbe principle announced by these authors has been applied by various courts in cases where railroad companies have entered upon the lands of others and laid their tracks and erected depots without authority of law, or the consent of the owners. Graham v. Railroad Co., 36 Ind. 710; In re Long Island R. R. Co., 6 N. Y. Sup. Ct. Rep. 298. But if a building be erected by a vendee on the land of another, under a parol contract of purchase, and there is
We think it quite plain from the testimony in this case that the Osage Valley road did not erect the building in.question under or in pursuance of any parol contract of purchase with the plaintiff, or any one authorized to represent her in the matter, and there is no testimony tending to show that the plaintiff had knowledge, or was legally chargeable with notice that the building was being erected on her land, if such knowledge or notice were material in this case. Ells swore positively that he was not her agent, and the testimony of Mr. Lucas was that he had authority to sell any of her lands, but there is no evidence that his agency was such as to charge him with the duty of protecting her property against trespassers. Indeed, from the testimony it is fairly inferable that Lucas himself had no notice of the erection and location of the depot, until after it was completed. The railroad company evidently relied upon the condemnation proceedings to give it title to the whole lot, and proceeded to erect the depot upon the plaintiff’s property without the consent of any one authorized to bind her, and the building, though set upon posts, was intended, not as a temporary, but a permanent structure.
This is not a case where a party, in good faith, believing that he has a right to do so, erects a building upon the land of another, in ignorance of the title of the true owner? ' and without objection on the part of such owner. On the contrary, the railroad company knew who owned the land and attempted to obtain the title thereto by statutory proceedings against the consent of the owner, and pending such proceedings, and without the authority of law, so far as this record shows, built upon the land. In such case, the owner neither condones nor consents to the trespass, by failing to protest, and notwithstanding his silence may assert his legal rights within the time prescribed by law.