175 Mo. 96 | Mo. | 1903
— The petition states that while plaintiff was a minor his curator, by order of the probate court, sold a strip containing 2.79 acres off the east end of a tract of 20 acres belonging to plaintiff; to the Northern Townsite Company, reserving a roadway across the strip sold, for ingress and egress to and from the rest of the tract; that defendant railroad company has constructed along this strip so sold its tracks and other railroad appurtenances, and by that means has obstructed the plaintiff in the úse and enjoyment of his roadway so reserved, to his damage, $500; “"Wherefore plaintiff prays the court to compel the defendant to remove all of said obstructions, and for judgment for five hundred dollars, and for all other proper relief.”
The answer of the defendant states substantially that the Northern Townsite Company purchased the 2.79-acre strip as agent for defendant, for the purposes of defendant as a railroad company, to lay its tracks and operate its trains upon; that a roadway across the same was reserved to the plaintiff for ingress and egress to and from his land; that defendant has constructed a good crossing over its tracks for the use of plaintiff, and that he has a roadway as it was agreed he should have; that the plaintiff and his curator knew the purpose for which the land was bought by' the Northern Townsite Company; that the amount paid by defendant therefor, $1,500, was understood as full compensation not only for the 2.79 acres, but also for the damage to the remaining portion of plaintiff’s land.
The answer then goes on to say that the order of the probate court was a direction to the curator to sell the 2.79 acres, no reservation being mentioned, but that the reservation was inserted in the deed by the curator.
The cause seems to have been tried on the theory •that it was a suit in equity. The trial resulted in a decree denying the prayer for an injunction, but a finding in plaintiff’s favor of $300 as “temporary damages,” and judgment against the defendant for that sum. From that judgment the defendant took an appeal to the Kansas City Court of Appeals, but after the record was lodged in that court the defendant filed a motion there to transfer the cause to this court on the ground that title to real estate was involved, which motion was sustained.
No judgment that could be rendered in this case would affect the title to the land described in the petition. If the plaintiff should obtain a judgment for all he asks it would be only to require the defendant to remove certain obstructions and pay the plaintiff $500 damages. Incidental to the determination of the plaintiff’s demand that the defendant be required to remove •its tracks, the court might find it necessary to look into the deed from the curator to the Northern Townsite .Company to see whether the disputed clause was a reservation or an exception, but whether on examination it should be found to be the one or the other no adjudication as to the title would follow. Nor is there anything in defendant’s answer upon which to build a decree affecting the title to the land. The answer admits that the deed contains a reservation to the plaintiff of a right of way sixty feet wide across the 2.7'9-acre strip to and 'from his land, but says that the reservation was inserted in the deed by the curator without the authority of the probate court, and prays that the plaintiff be required now to say whether he will stand on the deed as made by his curator or take a deed as ordered by the probate
The cause is within the jurisdiction of the Kansas City Court of Appeals, and is therefore transferred to that court for its consideration.
