70 Mo. 231 | Mo. | 1879
This was a suit for damages for an alleged unlawful entry by defendant upon Fifth street in the city' of St. Joseph, and digging up and obstructing said street in front of plaintiff’s premises, and constructing railroad tracks thereon, by means of which the street was obstructed and travel thereon impeded, and access to plaintiff’s said premises destroyed. The petition also asked for an injunction. The defense relied upon was, that by an ordinance of the city council the defendant was granted a right of way over said street, and authorized to construct its said road along and upon said street at the point where plaintiff’s premises are situated, upon certain conditions specified in said ordinance; provided the defendant accepted said grant in the manner in the ordinance specified ; and it was alleged that it was so accepted by defendant. Plaintiff' denied the existence of the ordinance. The court, after hearing the cause, found the issues for plaintiff, and rendered its judgment enjoining and restraining defendant as prayed in the petition, and the defendant has duly prosecuted his appeal.
The only questions presented which it is necessary to-consider are: First, In regard to the validity of the ordinance in question; Second, If valid, did a breach of the conditions upon which the right of way was granted terminate the right of defendant to use and occupy the street for its railroad tracks ? That the city authorities of -St. Joseph had power to grant defendant the right of way for its’railroad along the street is not controverted by respond
In the record of ordinances the name of the mayor was not to the approval clause. Hardin Davis also testified that he had what purported to be the original ordinance,
A lost or destroyed record may be established by parol evidence. Hedrick v. Hughes, 15 Wall. 124. And the evidence in this case, we think, fully established the fact that the ordinance in question was approved by the mayor. The slips of paper which the witness, Davis, thought purported to he the original ordinance, may have been, probably were, the ordinance prepared by the member of the council who introduced it; but it is hardly to be supposed that it would have been presented to the mayor for his approval on detached pieces of paper containing erasures and interlineations, or that he would have approved it in that condition. The only circumstance which witness stated, showing that these pieces of paper purported to be the original ordinance, was an indorsement on the envelope in which they were found, “Approved March 8th, 1878,” in the hand-writing of W. W. Brown, at that date city register. Nothing on the face of.the papers, or either of them, indicated that they contained the original ordinance; and in view of all the facts proved, it is not a violent inference that they were used in making tire copy which was presented to the mayor for his approval, and that the ordinance so approved was with these slips of paper kept by the register in that envelope.
In his commentaries, volume 4, page 439, Chancellor Kent clearly stated the distinctions on this subject: “ Words of limitation mark the period which is to determine the estate; but words of condition render the estate liable to be defeated in the intermediate time if the event expressed in the condition arises before the determination of the estate or completion of the period described by the limitation.” “ The material distinction between a condition and a limitation consists in this, that a condition does not defeat the estate, although it be broken, until entry by the grantor or his heirs; and when the grantor enters, he is in as of his former estate.” “ Conditions can only be reserved for the benefit of the grantor and his heirs. A stranger cannot take advantage of the breach of them.” Kennett v. Plummer, 28 Mo. 145; St. Louis v. Atlantic & Pacific R. R. Co., 66 Mo. 251, and particularly cases there cited; Holden v. Joy, 17 Wall. 251. As the judgment must be reversed for the reasons above indicated, it is not necessary to pass upon the questions raised by the motion for a new trial on the ground of surprise and newly discovered evidence. Judgment reversed and cause remanded.