130 Mo. App. 175 | Mo. Ct. App. | 1908
(after stating the facts). — Plaintiff, Anna M. Pratt, is the owner of a farm in St. Genevieve county, which was devised to her by her father John Lorenz. The description of the land is intricate and as it is not material to onr decision will be omitted. In April, 1905, or thereabouts, the defendant company entered on the farm and built a roadbed and line of railway across it. In doing this eleven or twelve acres were appropriated for right of way and damage was done, it is alleged, to the remainder of the farm. The petition charges, the value of the land actually appropriated was $100 an acre, or $1,200. The railway followed the cou7*se of a creek which surrounds the farm on the north and east sides. This creek is crossed by a railway bridge not far from the point where the line enters the farm close to its southeast corner and .thence proceeds in a direction just west of north to within a short distance of the northern boundary of the farm, which is the creek. Near the northeast corner of the land the road runs westward and a little to the south, following the course of the creek to the west boundary of the farm. In the main, if not throughout its whole route through the farm, the railway runs along the creek bottom, leaving the bluffy land to the south and west. Plaintiffs say this route takes the railway through the cultivated fields and bottom lands and divides said fields from the rest of the farm, cutting them into narrow strips lying between the right of way and the creek, and rendering the waters of the creek inaccessible from the main part
Suffice to say as to the estoppel pleaded, consisting of allegations that plaintiffs represented to the company a deed had been executed conveying the right of way through the farm, thus inducing the company to build its road, and had encouraged the building and watched defendant make a large outlay without protest, that at most, issues of fact were made by the evidence as¡ to these matters. Some evidence for the company tended to prove -Joseph Pratt made the statement regarding the donation of the right of way averred in the answer, but his own evidence and a portion of the defendant’s goes to show he only promised the right of way would be conveyed to the company if it built along a certain hillside on the farm, instead of in the creek bottom, the route actually occupied. The court would have fallen into error had it declared as a matter of law plaintiffs were estopped to claim damages. As soon as they learned of the entry of the company on their farm for the purpose of building a road through it, and this was but a few days after the entry and before any outlay of consequence had beén made, they telephoned the company’s attorney, protesting against the -construction of the road over their land until proper condemnation proceedings had been instituted, and stating they would demand damages for the unlawful entry. The elements of an equitable estoppel are not in proof. [Eitelgeorge v. Bldg. Assn., 69 Mo. 52; Spurlock v. Sproule, 72 Mo. 503.]
Before taking up the chief point in the case, we will advert to another proposition ‘ insisted on by de-
We might have some doubt about our jurisdiction of the case had it not been settled by decisions of the Supreme Court. It has been held that, though a proceeding to condemn land for railroad purposes does not, divest, the owner of his title, but only vests in the company an easement in the land for railroad purposes, yet such easement affects the proprietary rights of the owner (State ex rel. v. Rombauer, 124 Mo. 598, 28 S. W. 75); and hence brings the cause within the force of the provisions of the statute giving the Supreme Court jurisdiction in cases involving title to real estate. In other cases the Supreme Court has held that if lands are not taken under condemnation' proceedings by railroad companies, but are appropriated without such proceedings, and the owner sues for their value and recovers judgment, a satisfaction of the judgment will operate to vest in the defendant company an easement in the land as effectually, to all intents and purposes, as if condemnation proceedings had been regularly instituted and consummated. [Webster v. Railroad, 114 Mo. 118; Doyle v. Railroad, 113 Mo. 280, 287; McReynolds v. Railroad, 110 Mo. 484, 19 S. W. 824.] This being true, it would look like the title to real estate was as much affected by, or as much involved in, an action by the owner for damages when his land was appropriated without condemnation proceedings, as it is in a condemnation proceeding, and that if .the juris
The important question on the appeal and ¡the main controversy between the parties, is as to whether Mrs. Pratt owned a fee in the land taken by the company or merely a life estate. The answer to this, question turns on the construction of her father’s will by which the lands in question were devised to her and under which alone she claims title. She and her husband have two children and it is argued for the company that the.. will gave her only a life estate in the land with a remainder over to her children. The court below rejected the theory of defendant that Mrs. Pratt took a life estate and held that she took the fee. It is apparent this ruling affected the amount of damages plaintiffs were entitled to recover; for the value of her interest in the -strip appropriated would be different if she held only a life estate with the remainder over, from what it would be if she owned the entire fee. [Corrigan v. Chicago, 21 L. R. A. 212, note pp. 218, 220; Passmore v. Railroad, 9 Phila. 579; Miller v. Ashville, 112 N. C. 759; Boston v. Robbins, 121 Mass. 453; Harrisburg v. Crangle, 3 Watts. & S. 460; Railroad v. Dyer, 35 Ark. 360; Railroad v. Baker, 45 Ark. 252; Knapp v. Railroad, 53 N. Y. S. R. 571; Thompson v. Railroad, 130 N. Y. 360; In re Daly, 51 N. Y. Supp. 576; Elledge v. Railroad, 38 Am. St. Rep. 290.] Few questions have given rise to more litigation and perhaps to more discordant decisions, than the question of whether titles
It would be useless to review elaborately tbe authorities cited in tbe briefs touching tbe point of law at issue, though we have read them all. They have been reviewed time and again by tbe Supreme Court in opinions which we will cite, and tbe differences pointed out between tbe words used in those devises which were held to pass an estate in fee simple, and tbe words used in devises held to pass only a life estate to tbe first devisees with remainders over. Therefore our examination of tbe cases will be concise. Perhaps they are not entirely consistent, but we think most of them may be reconciled by careful attention to tbe language employed in tbe wills construed. When tbe estate given to tbe first devisee has been regarded as a fee simple, it will be found either that it was given unqualifiedly and by proper technical words, to tbe first taker as an estate in fee simple, and in á subsequent part of tbe will there was an attempt to cut down tbe fee to a life estate and limit a remainder over; which cannot be done without express words, or at least an unmistakable intention (Yocum v. Siler, 160 Mo. 281, 298, 61 S. W. 208; Sevier v. Woodson, 205 Mo. 202, 104 S. W. 1); or it will be found that though terms were used which might, standing alone import only a life estate in the first devisee, there' were united with these words other' words conferring power to dispose of the entire estate — an authority incompatible, with the intention to devise no more than a life estate to the first taker; or else some other phrase was used which clearly imported that the entire fee was devised instead of a freehold for life. We are cited by counsel for plaintiffs to the following cases as supporting their proposition that Mrs. Pratt took a fee simple under her father’s will. [Small v. Field, 102 Mo. 104, 14 S. W. 815; Yocum v. Siler, 160 Mo. 289; Roth v. Rauschenbush, 173 Mo. 582, 73 S. W.
In our opinion the purpose of Mrs. Pratt’s father to devise ber only a life estate is perfectly clear from the language of the paragraph containing* tbe devise and, therefore, tbe judgment is reversed and tbe cause remanded.