103 Mo. App. 422 | Mo. Ct. App. | 1903
— This suit is for damages alleged to have been sustained by plaintiff in consequence of the alleged wrongful act of defendant in obstructing a right-of-way claimed by plaintiff over defendant’s land.
On and prior to August, 1897, plaintiff, who was a minor, owned certain real estate adjoining the town of Plattsburg, Clinton county, Mo., over which it became necessary for defendant to have a right-of-way for its railroad tracks. The railroad line as located - passed over plaintiff’s land from north to south and in doing so left 17 acres on the west side of said line and two and seventy-nine one-hundredths acres on the line and the
The answer of the defendant is, that the land in question was purchased for a railroad right-of-way which was understood by all the parties at the time, and that plaintiff was to have a roadway or crossing over the same sixty feet wide for the purpose of egress and regress to and from the remainder of his land, but that it was understood and agreed that said right-of-way should be over and across defendant’s railroad. And further, that it paid to plaintiff’s curator $1,500 for said right-of-way and as damages on account of the building and constructing of said railroad across said tract of land, and as damages to the remainder. The answer also sets out that the order of said probate court made no reservation of a right-of-way over such land, and for that reason the curator had no right to insert such reservation in the deed aforesaid. Defendant prays that the court require plaintiff to elect whether he will stand upon the order of sale and deed directed to be made, or upon the contract made by the curator and defendant, and that upon such election that the deed be corrected and made to conform to said order of the probate court or to the agreement entered into between the parties as plaintiff may elect. -
The court rendered judgment dismissing plaintiff’s bill for an injunction but gave judgment ogainst defendant for $300 temporary damages. Defendant appealed.
Defendant contends that it was error in the court
The defendant had the right to construct its railroad over the land for it was so contemplated at the time of the purchase and was so understood by all parties and the probate court making the order of sale, but not in such a way as to interfere with its reasonable use by plaintiff. It had no right to obstruct it by the platform, the ditch in question, its railroad tracks, or in any other way which would materially interfere with plaintiff’s reserved rights.. That it might dig a ditch, build a platform, or lay its tracks over the reservation, there can be no question. But it does not follow that by any of these means plaintiff’s right-of-way would be necessarily obstructed so as to materially interfere with its use. Common observation teaches differently. The defendant under its deed was vested with the title to the land encumbered with plaintiff’s right-of-way as an easement. This provision for a right-of-way was not in the
Besides, from all the facts and circumstances shown, •it was the object of the parties to create a reservation. Barnes v. Burt, 38 Conn. 541, and other cases cited in Snoddy v. Bolen, supra.
The defendant’s prayer for equitable relief is substantially that the deed containing a reservation of right-of-way be reformed to correspond with the order of sale mad§ by the probate court in which there was no reference to such right-of-way. It is true, the curator derived all the authority he had to make said deed from the order of the court. It is not claimed that in inserting in said deed the reservation for a right-of-way that the ward was injured in his property rights, but on the contrary he was benefited. And besides, this, reservation as we have seen, was in pursuance of the original agreement between curator and defendant’s agent. The defendant by its prayer is not seeking equity. The equity of the case is against it. It bought the land and paid for it, less said right-of-way. This is admitted To reform the deed would therefore operate to that extent in favor of defendant at the expense of plaintiff. The defendant was not wronged. It received all it paid for. If the plaintiff, who was then a minor, •does not complain it does not lie in the mouth of the defendant who was'not injured to interpose an objection to
The court also ignored plaintiff’s prayer for equitable relief, but of this he does not complain. But as he excepted to the action of the court and filed his bill of exceptions he asks that the cause be reversed because the court failed to give him judgment for permanent damages. The action of the court should be upheld. The injury here is temporary and only damages for such as had been suffered could have been given. Brown v. Railroad, 80 Mo. 457; Pinney v. Berry, 61 Mo. 359; Foncannon v. Kirksville, 88 Mo. App. l. c. 284.
The evidence to support temporary damages was slight. ' We find none in the record fixing plaintiff’s damages greater than $200. For this oversight the cause is reversed and remanded unless plaintiff shall within twenty days enter a remittitur for one hundred dollars, in which event the cause will be affirmed.