*1 contract.” parties make a different 'to induced the probably words, court (Tenn.) other 321; 10 Lea R. C. L. 406.] [23 v. Tesson made. agreement was never supply [ an cannot Co., Mo. Insurance ground equity, on be reformed written instrument A admitted, the mistake parties, of the when mistake of mutual by the actually made agreement upon both as to the proof, sufficient in stating in the mutuality of the mistake parties and as to the clear, cogent must be proof But the agreement. a different strument high remedy grant equity do not convincing. Courts preponder upon a mere probability, or even upon a reformation certainty the error. only [Em evidence, but ance of the (2d) W. Garrett, 38 S. Corp. Indemnity ployers’ short of falls far in this case proof authorities cited.] just indicated. requirements must be affirmed. circuit court that the
It follows All is so ordered. concur. Ap Railway Company Dillard, M. F. Francisco St. Louis-San 1034. (2d)W. S. pellant. 43 One, 1931. Division November *2 Mayes Von appellant. *3 respondent.
E. T. & Beeves Miller Ward ejectment major STURGIS, portion C. Suit in to recover triangular dell, Pemiscot small tract of land in the town War County, right-of-way by plaintiff claimed through grounds. nearly north and south The railroad runs general right-of-way wide, this tract town and its feet enlargement right-of-way The adjoins on the east. and is an point south and comes to a tract feet wide at the angle further The railroad runs at an eastward feet north. Railroad the standard line between running north south. Street ejectment, judg- petition praying form in is in conventional gen- damages. The contains small answer
ment for Limi- defense the pleads eral denial and as an affirmative Statute *4 by plaintiff in years; estoppel also an stood tation of ten that improvements place to valuable protest permitted without defendant pos- question defendant’s adverse disputed tract. The of on said bringing was of this suit years the than ten before session for more ease juryA and the strongly was waived most contested. the issue judgment plaintiff. resulting in for by jury, a court as a tried the overruled, and trial, was motion for new which filed The defendant form. appeal in due defendant’s the case is here on com- stipulated John Winters is the say that and so parties Both claim plaintiff’s title or though shown that title, it is mon source of fact, by Winters. claim of ownership antedated of (from whom does bought land he when he that Winters testified connecting main track, with the spur or a say) there was switch not controversy, plaintiff in triangular tract line, this on however, tried parties, possession. least in extent at that title source of is the common Winters agreement that John by case incidentally. Plain- except into inquired not prior title was tiff, original plat however, put Moscou, in of town evidence the of changed Wardell, being name later which that shows L. time, F. and Robert February, owners at that were James being or Evidently Warren. was then constructed railroad through right-of-way plat line constructed this shows the as controversy small 'marked a town, the tract now in and on Evidently by the rectangle designated “Depot.” it was intended owning the whole platting the town and persons laying out or near this body depot build its at that the railroad would of land being right-of-way wider at point, this account for the actually however, happened, 100 feet. What point this than the main line the west of its its on side that built the railroad designated, a it did build point so but nearly opposite the track extending beyond usual onto its switch track occupied Evidently controversy. then claimed railroad right-of-way. part this tract said, agreed
As we John Winters, have title, common source of bought testified that when he the land in this had railroad plaintiff a company “put switch it—the on they there and says a Winters for switch.” further that he then in “under- took to move the make them switch off that brought land” and suit purpose. proceedings such Such were suit, had in that John Winters, plaintiff Louis, v. St. Memphis & Southeastern Railroad Company defendants, al., et a that was entered decree Term, 1905, at the November of the Circuit Court of Pemiscot County, full, by out which is not set which decree says property “the title to said was divested out of said Winters Louis, Memphis St. & and vested in the Southeastern Com- Railroad predecessor pany, plaintiff’s corporation,” title. is on ac- this, count of traces its decree title to John Winters him to be the and concedes common source title. notwithstanding later, John eight years Winters, Some warranty divesting conveyed this title, him decree land says Defendant that he did not defendant. present deed making purchase, not abstract of title when did or consult an divesting though grantor of same was title, his decree know the bought faith, believing getting record, good he was public switch was good though knew railroad title, he admits he and in years the land use then and had been railroad. purchasing from at once testified that he further Defendant *5 question. al- was of the tract There began using parts
Winters a blacksmith been used as building there which had ready a small year machinery. In a soor to store used this and shop, defendant later built years about three tract, this and a warehouse he built long brought another warehouse. Not before suit was he built plaintiff building a store on this tract. In his letter written to 2, commenced, six June some months before suit was asking tract, years ago he About built for lease of this ten I a warehouse on this land. And later on I built an it. addition to year you last I built a word Then storeroom on it and never said one you to me that claimed land.” He also testified: “I things. I part continuously storing plows of it since eight years.” use it much until the This suit didn’t last seven or years his was commenced some fourteen defendant after obtained possession. from Winters his deed and commenced claimed In shortly deed, plaintiff meantime and its after defendant’s moved says right-of-way, switch track over on the 100-foot him Plaintiff this was done on his demand and notice from to do so. moving right-of-way, such, if part did not use this of its was after says possession. appears, switch, and defendant had sole he however, got that at commenced the time defendant his deed and right- to use this tract this line of railroad was little used and its agent depot built, of-way unenclosed. No had been and no station regular daily maintained there. There was not even train was allowing plaintiff’s service. This account for indifference however, upon. condition, This its to be encroached rail changed, agent employed, much built, a station began consequence plaintiff road was transacted. As a business surveys made, closely and at looking property, its had more after its year openly asserted this suit was commenced least a before When right-of-way. ground this tract of plain applied investigated all this the title defendant heard he his land. letter to tiff for a lease on this ap just among things, says: he “Have made other June (Broad north of Street some situated plication for lease on land Wardell, right-of-way and Railroad Street your railroad between your agent I here that your Missouri, you state in letter which county seat it at the upon, and from the records encroached have warranty I intentionally. have had a have, that I but not seems . your . . years. Since plat land for thirteen for this deed an I examined my this matter agent attention to here called covered this another fellow that made for abstract using you 1905 Mr. Winters sued it shows that other lands and which compromise was made kind of spur, some for a his land true, then If this record is to this land. you all title went certainly you I wish land, you best title to this hold course buildings I have this sooner my attention to called had $2000. me around it has cost I have owned put on it since shown time, it would have at the got I an abstract Of if had course *6 today, many years the but I known same as had Mr. Winters for ’’ and had no reason to doubt his word. plaintiff unwilling Defendant does not claim that make a buildings him situated, lease' to of the land on which the w'ere consulting a.lawyer after This he concluded not to take a lease. If then followed. we stated facts favorable suit most «plaintiff, that is proper appeal. on defendant’s sitting jury trial a find-
On the of this case before the court as no ing facts of law or of was made no declarations were asked given. assignments (1) undis- of error here are that under the
puted judgment facts the should have been for overruling ¿efen¿ant;. (2) that court erred in repeated last rulings, motion for trial. Under our this a new assignment giving Be- general is too to warrant it attention. our trial, com- sides, we at the for no when look motion a new we find judgment against evidence, plaint except law and the that the is judgment law and that under the evidence the should be defendant. any theory record, supported
Under this if state of there by warrant inference therefrom substantial evidence reasonable finding ing plaintiff, a should be affirmed. [Crowell- Hill, 427; Houghton Const. Spencer Lbr. Co. v. S. W. Brown v. 116; Co., 137; Musick, 227 W. Bubach 256 W. S. S. Co., Life Federal Land Bank v. International Ins. proof the burden of S. W. This is the rule even where not contend winning the defendant does even party. on the Here prima-facie case. plaintiff legal title made but that has for the possession claim of under He relies on adverse an affirmative statutory period limitation. This is defense ten-year of entering is on as to all the elements proof burden of defendant and the being length time, continuity, possession, such of into adverse questions fact of ownership. of These are open, and under claim jury. Where finding that of the court is same as of and the absolutely free oral, here, not is all evidence defendant’s finding countervailing evidence, doubt, if there is no from even all open for review here. of court not facts, that had a comparable this on case ten-year on the Statute legal title relied elear 283 Mo. Hill, Union Co. title, Trust Limitations under color “It will observed court 278, en bane appellant of facts that relied from the statement his claim lands to sustain to the of Limitations the Statute part upon tending evidence to show he and that introduced question, described a sufficient lands above possession he had been will into title. ripened to have time for length respondent also be observed tbat introduced no con evidence to tbe trary. The case was a case, law tried to the court without aid jury. stated, of a As findings no declarations of law or of fact were by appellant, asked given. and none were Respondent con now finding tends that the of the trial questions court fact precludes involved a review court, evidence *7 must for that reason be affirmed. This contention must be authority long sustained beginning of a line of cases Bryan with Wear, v. 106, Mo. continuing and down the case of State Sturgis, ex rel. v. 559, Among many Mo. l. c. 570. cases maintaining doctrine, following may cited: be Gannon v. Gas Co., 145 502, Mo. l. 515, c. etc. The reasons for this rule are set forth length at opinions in the cases, particularly these Gannon case, repeated and need not be here. ... In actions at law weight even undisputed parol of evidence is for the triers of fact finding and their is appeal, conclusive on In this instance the trial judge trier facts, treated, was a of is to under and his decision be properly the circumstances shown, here as the verdict of a instructed jury.” Ry. Co.,
See also
561, 566,
Zimmerman v. C. G. W.
156 Mo.
and
Wischmeyer Richardson,
v.
From the fact that this little pur- land was of value for business poses bought at the ac- Winters, $50 time defendant from about cording evidence, to his and from title of his indifference as to the grantor years many his his the land for there- and limited use of reasonably evidence, after and other facts inferred from the of defendant’s claim of trier the facts well discredited during possession adverse under bona-fide claim of ripen years. title. whole of the ten Possession alone does not into Henderson, 566, v. 156 Mo. [Baber 573.] acquired law this State that lands
It is also the well settled of legitimate exempt are from the bar purposes and held for railroad public are to a Statute Limitations. Such lands devoted to the owner adverse
use and are not lost applicable to ten-year Statute of Limitations under the our statute. effect of generally. Such is the real estate 657; Totman, 149 Mo. Joseph R. Co. v. & St. [Hannibal Mo. Railroad, 215 Powell v. 323; 312, Mo. Baker, 183 v. Railroad 352, 339, 358.] right- or standard usual to the law confined rule is this Nor necessary reasonably lands railroads, extends to of-way storage pens, switch yards, stock grounds, depot station v. 332; Railroad 170 Mo. Smith, v. yards, etc. [Railroad Mo. Baker, 322.] property is a “The supra, this case, Smith 11|2 strip running1 through of land Gower, town of marked plat
on the Right-of-Way,’ of the town as ‘Railroad Stock ‘Railroad adjacent Right-of- Yards and Grounds.’ lies to the ‘Railroad Way,’ necessary much proper appurtenant and is as to the grounds of a operation depot are, railroad as for it is loading unloading of stock. It therefore falls within the Ry. rule & Wabash, laid down Omaha St. Louis Co. v. Louis St. Railway Baker, Pacific 298.” Co., 108 Mo. And in Railroad supra, the tract of land ivas outside the and) part large Depot tract “Reserved for Grounds.” necessary Nor is it grounds that such additional actually necessary purpose. under then conditions for such rail- right provide road has a anticipate growth for and its future respect. Smith, 327, 333; needs 170 Mo. Rail- [Railroad Baker, road v. Mo. ‘‘ case, supra, In the Smith point: court said on this The fact cases, emphasized in these that the railroad is not cut from its off right appropriated public use, to claim that such land because previous controversy actually right- had not to the used it for a *8 etc., of-way, depot grounds, pointed for it was out that if land the obliged designation company actually within the was was the not to necessary occupy so, it until it became or desirable for it to do and by company, any who entero so owned one land railroad th#t improvements thereon, peril, erects so at his affected and does and is rights land, railroad to such no with notice of the and that possession can be adverse the railroad be made the of a to basis railroad, by against long no matter that limitation as how Jitle may logical necessary continue. These are the se flowing quences of this from the Constitution State in reference by uses, pointed such as was out property so held railroads for Railroad, 110 160.” This by Thompson v. Mo. l. c. this court quoted Baker, v. 183 Mo. language approval with in Railroad 325. 312, might by railroad be so disconnected lie that lands owned reasonably re- might any use which the railroad
with reasonable entirely quire part abandoned as a or which been so have subject etc., same become right-of-way, depot grounds, railroad owned. privately same as 'lands to the Statute of Limitations question fact and would become a Whether this condition exists against court possibly present such case. The trial found finding contention, course this is conclusive here. any and of such that the abandoned point stresses the railroad Defendant being as of its lands used for railroad the tract change many years ago purpose cannot now its purposes
1163 recover the same. While this court has held that in this State common law real property at “title to can neither ¡os^- gajne¿
^ nor operating alone’1 abandonment (Powell Bowen, 279 142), Mo. 214 W. S. when combined seen, possession, with adverse cannot so we do under yet Limitations, Statute of of abandonment will in some doctrine operate against cases Kansas railroads. Investment Co. v. [Roanoke City 64; 108 Ry. Co., Railroad, & E. Mo. Hatton v. S. Mo. 660, 676; Joseph Railroad, St. Mo. case, supra, Hatton said an that, this court to constitute
abandonment, relinquish pos- “there must an intention to use) again (and property, session without an intention to case, repossess supra, Company it.” And in the Investment Roanoke true, this is “But while it that mere will not non-user abandonment, ac- amount to an it is well settled that an easement quired by equivalent may To grant or its be lost abandonment. acquired by grant, acts constitute an abandonment of an easement unequivocal must of such an nature to indicate a clear be shown intention to abandon.” showing
All must be hold that facts an abandonment cases convincing. strong and partially switch company railroad constructed a fact that the that when years; it was sued land and several decree divest- strenuously and obtained a defended m ownership; again grantor
ing all claim of. defendant’s suit, repudiate brought has maintained tends to right, use this any completely time abandoned its idea that it at com- if trier of facts was purposes. Even land railroad plain- pelled wholly statement that the accept as true defendant’s part- of the railroad switch tiff his demand remove did at ac- controversy regular right-of-way and did not to its the land *9 bearing only thereafter, fact yet that is not the tively tract use having on judge and, trial found question, on this abandonment, is closed the same here. question of We estoppel. weight evidence as to pass we Nor will permit- Plaintiff’s action salient facts. already stated the storage parts occupy use of this ting substantial storeroom build a and later to purposes permissive. If defend- merely passive or same merely estoppel, made sustain sufficient to ant’s evidence against de- facts resolved which fact, the trier an issuable fendant. be affirmed and judgment should Our conclusion C('., Ferguson Hyde, concur. so ordered. by Sturgis, O., adopted foregoing opinion PER CURIAM: The judges concur. All of the the court. opinion of
as the