116 Mo. 25 | Mo. | 1893
—This is an action at law tried by a jury. The case is that plaintiff was the owner of a large tract of land lying in a body, partly in the county of Clark axxd partly in the county of Lewis, in the state of Missouri. On the tenth day of July, 1872, he conveyed
And in 1879 the plaintiff by another deed, his wife, Mattie Ruddick, joining with him, conveyed to the defendant company a right of way over certain of his lands lying in the county of Lewis for the consideration of “a certain and continuous pass granted to said Mattie Ruddick and family over said St. Louis, Keokuk & Northwestern Railway, and it is agreed that if said pass is refused or withheld by the company now operating said railway or their successors, then said strip of land to revert back to said grantors and this deed to be void.”
In 1875 the property and franchises of the railway company were sold to foreclose a mortgage, under a decree of the circuit court of the United States and one Stone became the purchaser at the mortgage sale. Soon thereafter Stone sold, the railroad property and franchises to the defendant, which is a railroad corporation organized under the laws of Missouri, and also under the laws of Iowa. The agents of the defendant recognized plaintiff’s claim to his annual pass until the expiration of the year 1883, and to January 29, 1884, when they declined to issue to him any further. The defendants also recognized the claim of plaintiff’s wife, Mattie Ruddick and her family to an annual pass until the fourteenth day of January, 1887, when it declined to issue it any further. Upon these facts the plaintiff prosecutes his suit upon the ground that the land
The usual motion for new trial and in arrest being filed and overruled, the case is appealed to this court.
The deeds from the plaintiff to the different railroad companies both contain substantially the same conditions in regard to forfeiture on failure to furnish ■annual passes according to' the terms of the deeds. The passes were furnished for quite a number of years, and finally refused by defendant, who succeeded by purchase to the rights and franchises of the Mississippi Yalley & Western Railroad Company, and also to the rights and frandhises of the St. Louis, Keokuk & Northwestern Railway Company, and, if the covenants in the deeds were not coupled with the conditions and provision for forfeiture for failure to furnish the passes, they would not run with the land and would not be binding on defendant.- The covenant would not run with the land because foreign to, independent of and not in any manner connected with it. Only such covenants and conditions as are connected with, or requir ing something to be done on, or about the land itself run with it. Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Railroad v. Kenney, 20 American and English Railroad Cases, 458; Railroad v. Smith, 9 S. W. Rep. 885;
Bnt as the covenants in both deeds are covenants with the subsequent condition of forfeiture upon failure or refusal to furnish passes as provided in the one for plaintiff and in the other for his wife and family as provided in them, and as therein expressly set forth, defendant as the successor by purchase to the grantees in those deeds, took subject to all the conditions in said deeds and is bound thereby as if it were the original grantee.
At common law it was necessary for the grantor to enter upon the land conveyed in order to work a forfeiture. It could not be effected by bringing an action for the recovery of the possession. This rule has been somewhat changed, so that at the present time the ordinary action of ejectment would have the same effect as the common law entry. The right of entry need not be expressly reserved where the condition is express. It follows as a necessary incident to the condition 'and passes with the land, into whosesoever hands it may come. Tiedeman on Real Property, sec. 277; Osgood v. Abbott, 58 Me. 73; Jackson v. Allen, 3 Cowen, 220; Bowen v. Bowen, 18 Conn. 535; Gray v. Blanchard, 8 Pick. 284; Fonda v. Sage, 46 Barb. 109.
It has also been held, if several parcels of land are conveyed upon condition by the same deed, or are embraced in the same mortgage, and are all situate in the same county, an entry upon one in the name of the whole will be sufficient to enforce the condition as to all of the parcels. But if there be different deeds of the parcels, with different ~ conditions therein, the entry must be made upon each. 2 Washburn on Real Property, sec. 16, p. 18.
It does not necessarily follow, however, that because of the forfeiture of the land occupied by defendant
If, in the first place, the entry by the railroad company had been without authority and against the will and consent of plaintiff, a different rule Would obtain, because in such case the entry on his lands and the appropriation of a portion of it by the railroad company to its own use would have been unlawful. Plaintiff should have entered for condition broken, or prosecuted his action to final judgment for that purpose, before instituting this proceeding, if at all. But in that event the measure of damages would not be that which the entire tract of land sustained by reason of the construction of the road, but would be the rental value of the right • of way, taken and occupied by
The rule of law which entitles those whose lands are taken and condemned for railroad purposes, by virtue of the right of eminent domain, to damages done to the entire tract by reason of the taking of a portion thereof, does not apply to eases like the one at bar, where the right of way was in the first place conveyed by deed. Upon the execution by plaintiff of the deeds, the title to the strip of land embraced therein vested in the grantees, subject to be defeated by failure on their parts to comply with the conditions expressed in the deeds, that is, to furnish in the one case a pass to plaintiff, and in the other to plaintiff’s wife and family. Upon condition broken, and entry for reason thereof, the title would revert to and become reinstated in plaintiff, but, until such entry is made, it will remain in defendant. But even if he had entered for condition broken, he could not maintain an action for damages for the land thus taken and also to his entire tract by reason of such taking, because the deeds as soon as executed passed the title to the right of way from plaintiff to the grantees and the road constructed and put in operation by virtue of the authority conferred thereby. And, upon entry for condition broken, he could get nothing more than was conveyed by the deeds, which was the strip of ground occupied by defendant for its right of way. He would acquire no right to sue for damages for the taking of his land for road-bed, and by reason thereof to his' entire body o'f land.
Plaintiff misconceived his cause of action, which occurs to us, is either an action against the original grantees in the deeds for damages for failure to furnish the passes, as held in the case of Helton v. Railroad,
When a railroad is constructed by and with the consent of the land-owner over whose land it is located, evidenced by deed or contract with subsequent condition, ejectment will not lie. McClellan v. Railroad, 103 Mo. 295; Masterson v. Railroad, 72 Mo. 342; Hubbard v. Railroad, 63 Mo. 68. But when the deed contains a condition for forfeiture, which broken, ejectment for possession will lie.
All the instructions given by the court should have been refused, and the motion in arrest sustained, because the petition states no cause of action. As this disposes of the case, it is thought to be unnecessary to advert to the many other questions raised by counsel for appellant in their briefs. The cause is reversed.