56 Mo. App. 68 | Mo. Ct. App. | 1894
— The plaintiff’s petition contains two counts. In the first count it is alleged that the plaintiff Margaret Sheridan is now, and has been since January, 1887, the owner of a farm in Knox county, and that a railroad which the defendant now owns and operates is located thereon, cutting off twenty-four acres of land from the remainder of the farm.
For a cause of action against the defendant it was averred that at the time the railroad was constructed, to-wit, in January, 1887, the plaintiff Margaret Sheridan, and Martin Sheridan, her husband, executed and delivered to the Chicago, Santa Fe and California Railroad Company, an Iowa corporation, a deed conveying a right of way for the railroad through the farm, which railroad was afterwards constructed by said company; that, in consideration of the deed, the Iowa company agreed to construct a suitable farm crossing, where the road passed through the farm, at such point as the plaintiffs might thereafter indicate; that in pursuance of this agreement the railroad company took possession of the strip of ground and constructed its railroad thereon; that afterwards this company sold and transferred its interest in the railroad to another railroad company having the same corporate name, but which was organized under the.laws of the state of Illinois, the latter company assuming all liabilities of the former; and that subsequently the Illinois company sold and transferred its interest in the road to the defendant corporation, which in turn assumed all liabilities of its vendor. It was then alleged that the defendant, although often requested, had failed and refused to construct a farm crossing for plaintiffs’ use, as the Chicago and Santa
The second count alleged the ownership and operation of the railroad by the defendant for the past five years, and a failure on its part to construct a farm Crossing along the railroad, where it passed through the plaintiffs’ farm, although the plaintiffs had often requested it. so to do, and that by reason of this the plaintiffs had to a great extent been deprived of the use of the twenty-four acres of land, to their damage in the sum of $500.
The court sustained a general demurrer to the second count, and on a trial of the first count it instructed the jury to return a verdict for the defendant. The plaintiffs have appealed.
The action of the court in directing a verdict for the defendant on the first count in the petition must be sustained, and its judgment thereon affirmed. The alleged agreement on the part of the Chicago, Santa Fe and California Railroad Company, of Iowa, to construct a farm crossing for plaintiffs was not incorporated in the plaintiffs’ deed conveying the right of way. The conveyance was without conditions or restrictions. The plaintiffs read in evidence a deed from the Iowa company to the Illinois company conveying the railroad and its appurtenances, in which deed the latter company-agreed to pay all existing liabilities of the former company. But there is nothing in the record having the least tendency to show in -what manner or upon what terms the defendant acquired the property. Hence we cannot conceive upon what principle the defendant can be held. Cook v. Railroad, 36 Wis. 45. The mere fact that defendant operated the road, and that is the extent to which the evidence goes, proves nothing in support of its alleged liability.
The demurrer is a part of the record proper and the action of the court thereon is not a matter of excep
The judgment of the circuit court will be reversed and the cause remanded for further proceedings under the second count of the plaintiff's petition.