67 Mo. 442 | Mo. | 1878
— The following is the agreed state of facta in this ease: “ It was proved and admitted, at the trial of the case at the September term of the Jasper circuit court, that defendant bought of plaintiff the lumber mentioned in plaintiff’s petition for the price stated in the account? that the lumber with which the freight, depot at Carthage station, on said railroad, was built, was a part ©f the lumber so bought of plaintiff for that purpose, the whole being a large bill of lumber bought to build a passenger depot and a freight depot at that station; that said freight depot was situated on the land and lots mentioned in plaintiff’s petition, between the main track and the switch or side track of said railroad, immediately adjoining and up to said track, and on the one hundred feet strip of land granted to said railroad company as a right of way for said railroad by the North Carthage Land Company ; that plaintiff filed his lien and commenced his suit within the time required by law; that said freight depot had been burned down and destroyed after suit was brought, but before trial of the cause.” The verdict, and judgment were for the plaintiff. It will be observed that the suit was commenced prior to the act of March 21st, 1873, entitled “ an act to protect contractors, sub-contractors and laborers in their claims against railroad companies or corporations,” &c. This act is somewhat obscure, and sections 2,11 and 12 may admit of different interpretations, as to the extent of the lien. It is not necessary in this case to determine whether it was the intention of the act to allow sales of detached portions of a railroad, or to require the entire road to be sold on any and every lieu enforced under its provisions. It is sufficient to say that the present suit was brought before this enactment, and
In the case of Dunn v. N. M. R. R., 24 Mo. 493, the court evidently regarded it against the policy of the State to allow detached portions of a railroad to be sold under an execution or a judgment enforcing a mechanic’s lien. Most of the railroads then, perhaps all, (1857) were State roads, or at least materially aided by State funds, and the court repudiated the idea that the public interest in them could be sacrificed at the instance of an individual. In McPheeters v. Merrimac Bridge Co., (28 Mo. 467,) the same position is reasserted, and it is declared that where the “ in-' terest which the proprietors of a railroad have in the soil over which it passes, is merely an easement or right of passing and transporting trains, persons and things over the land of another, it cannot be sold, assigned or taken on execution.” The declaration of Judge Scott, in the cases cited, is not by any means a novelty, but is supported by elementary writers and judicial decisions of other courts. In Proprietors, &c. v. N. § D. R. R. Co., (104 Mass. 9,) the court say that when a railroad company acquires oxxly a right of way “ it is not a fee, xxor a freehold estate, but an easement only, not a coi’poreal interest, but an incorpoi'eal right.” Here the agreed case is that a 100 feet strip was granted by the Carthage Land Company as a right of way for the defendant. How such an interest could be available to a purchaser is not apparent. If, under the act of 1873, it is designed to sell out the franchise, the objection would not arise. In the present case it is admitted that the depot was burned down before the suit was tried, though not before it was commenced. In Pennsylvania it seems to be decided that, as the lien on the land is incidental to the lien on the house built on it, if the house is destroyed by fire or otherwise, the lien on the land is gone, Wigton v. Brook’s Appeal, 28 Pa. St. 161, and our
Reversed.