*1 issued improvidently certiorari was facts. writ of state of Our Bradley, CC., concur. Hyde and quashed. It is ordered. should be foregoing C., is opinion PER CURIAM: The Dalton, judges All the opinion as the of the court. Railway Company, Appеllant, v. Frances et al. Wabash (2d) 144 S. W. 110. One,
Division October 1940. N. Brown, B. B. Elster and E. L. Gardner for appellant. A. Louis Stigall V. Balpli M. respondents. Etibanhs for *2 HYDE, try C. This in an action and to determine title. Plaintiff! simple prior adoption fee title under condemnation to the of claims Highway 1875. State our Constitution of Defendant Commission claiming part affirmatively seeking to the land answered title of and (one determination of title. Emmons of the heirs of the Defendant Ham) by general owners and answered The denial. adjudged by that title claimed court the land the Commission was highway purposes;” in it as “an easement for state vested heirs) (Chauvin Ham defendants and were “vеsted with fee other simple “subject highway in all land to the title” easement for state part therefor; “plaintiff right, in used and that has no purposes” in any ... of real Plaintiff claim or interest estate.” has judgment. from appealed by question plaintiff part in used The tract as a of its whole way many years prior for toT936. all Thereafter, of tracks were it, right way
removed from and it was abandoned for of pur- railroad a plaintiff bridge new over the Missouri at poses, when built River predecessor, Plaintiff’s The North Missouri another location. Railroad Pelagie began against Company, a condemnation suit al. Chauvin et a strip long. fоr of land feet wide and about two miles required payment $6400, a company obtained decree which of The ‘‘ be done amount of which will land defend- thereon, talcing improvements into consideration аnts after disadvantages vahee land said part.” (This to the or lot which the same railroad tract a forms judgment by agreement.) The further amount was fixed recited “that North Company vested The Missouri Railroad feе title be ’’ herein, The rest land involved aforesaid the land described. strip, 15.96 north of triangular tract of acres the first was con- a against Ham Joseph approaches al. for by suit in et demned bridge the Missouri River. original over The decree' in damages to Ham required payment that case $1436.40 petition alleged incorporation $899.60 to others. The company bj^ the act also stated that this act had beеn by January 7, later December amended acts proceedings acts, “in prayed joursuance the above recited general act act entitled an to authorize formation ’’ regulate Railrоad Associations and to the same. decree “that fee title use recited land condemned of said hereby ... and the same is said Railroad vested September, 1937, plaintiff, forever.” abandonment Highway judgment the State in its Commission obtained condemna- against tion (it suit Chauvi'n Ham heirs had many quitclaim them) part deeds from the use of of both tracts highway purposes. party for use state Plaintiff was not Thereafter, December, 1937, plaintiff suit. this suit commenced claiming the title in of both to all tracts. question plaintiff’s acquired predecessor for decision is whether absolutely simple, by proceedings, the title in fee these condеmnation *3 so that there no the would be reverter heirs of the owners by abandonment purposes. of the tract for railroad It is not con that .any this had pur tract ever or could have use for such tended рoses right way. is, other than It course, longer possible of no acquire by for a railroad to such a title fee condemnation. [Consti 2, of Missouri, 21; 12, tution Art. 14; Sec. see also Art. Sec. Coates Hopkins Realty City & Ry. Co., v.Cо. Kansas Terminal 328 Mo. W. (2d) 817; Highway 43 S. State rel. ex State v. Comm. Griffith, (2d) conceded, however, Mo. S. W. It is 976.] plaintiff that predecessor has question whatever title its had. This must, course, by be in determined then force statutes because was then prohibition against there no constitutional the enactment of condemnation vesting statutes which would fee authorize simple title. North Company The Missouri incorporated by Railroad was spеcial act of Legislature (Laws 483.) in 1851. 1850-51, p. Mo. was There in that (R. effect at time a statute Mo. p. 34) 7, chap. providing: see. every corporation charter “The that shall granted Legislature, hereafter bе subject be shall alteration, suspension, repeal, Legisla- in the discretion ture.” The (séc. 1) company “take, Act of 1851 .authorized hold,-use, possess enjoy any the fee or title in other and to “sell, real estate” convey, pledge, mortgage dispose and to or of the same.” (see. was company 7) The authorized to “construct a rail- City Charles, from the . passing up road of St. . . the divide Mississippi between thе tributaries and Missouri . Rivers . . in (Iowa) ;” the direction of “for purpose Fort Des Moines that may exceeding a strip hold one of land not feet in hundred width.” (Wider “in passing valleys, etc.”) company hills and was also right (see. 8) voluntary relinquishments “to authorized take road;” way for said this could not be done to commence where fixing damages in in (sec. 9) condemnation circuit court. such 9) proceedings, appraiser’s (sec. to “take required court’s were advantages into consideration the value land dis advantages provided (sec. 10) road to also the same.” It was owner, enter judgment against Court shall “the favor such company, damages assessed, such for the shall amount make an vesting company order said the fee title of "the land.” provision, Because of this latter plaintiff claims to still owner be the complete the absolute title in even abandonment controversy of the land in purposes. court held against Kellogg Malin, contention v. in a Mo.
involving language vesting (authorizing same “an order in the company the fee simрle title”) way as condemnation County chartering Company. act Platte Railroad This court “notwithstanding language nothing held use'd, more than an passed road, giving easement perpetual it and continuous title long purpose it taken, used the land for the for which it was but, abandoned, when that use was then it revert back to would owner.” reason ruling County The court’s Platte was Company provided determining act further that “in consideration to . paid be . . the benefits ancl accru ing owner taken “if calculation;” are into and that the road should abandoned, ... deprived be the owner of his would any compensation” estatе (unless reverter) without there was where given only he benefits, nominal because excess any being likewise case of benefits considered would he never compensation receive full if was later *4 thе abandoned. Beasley, decision was reaffirmed in Allen v. 297 Mo. 249 subsequent Likewise, W. where cases -were reviewed. S. Railway Venable v. Western Co., Wabash 112 20 Mo. S. W. 493 (also involving right a way title) North Missouri Railroad (in grant by voluntary court said the 1865) deed in corporation “the tenure public the is the nature of a for trust use, subject supervision government,” to the right of the whether the way by voluntary deed, is obtained dedication or condemnation. However, we have more to consider in this case than was before Kellogg the Malin, supra, subsequent court in v. (prior becarrse of acts herein) changing to the condemnation suits pro the condemnation ceedings by company which this was acquire authorized to land for way. right herein, either Before condemnation the North Missouri (Laws Act was 1852-53, p. 323, amended 1853 of Mo. l. c. 9) company see. to authorize the to a “railroad from construct ’’ any City point City the St. to Charles the of St. Louis. It was (Laws in 1855 Private, 1855, further amended Mo. Local and
954 Sections 9 232-233) proceeding (changing provide a different p. by- damages the were to fixed Act) 1851 which 10 the under part thereof value land on such taking “into the of the consideration relinquished and dis and the shall not have been the same forms a tract or lot which advantages of the roаd “make an order only authorized to court part;” and which the was way road across or over the for said vesting company in said ” change with the condemna Moreover, this was in accord land. railroads, law, general applicable to provisions tion title general Legislature. This act did not at this same session of upon provided pay titles vesting of fee but authorize company compensаtion right way, for “the awarded shall ment land, upon, possession of, and use the said be entitled to enter take during continuance purpose incorporation, of its of its for the existence;” “parties proceedings shall be corporate divested during of .all in such real estate right, barred estate interest corporate company;” that “all real of the estate existence by any acquire . . . acquired company shall be deemed to (R. 1855, chap. 18.) public Chapter use.” sec. Section 57 of existing . . provided corporations that “all . shall act; they possess powers in this have and all of сontained subject duties, provisions, not shall be all the liabilities and incon provisions charter, their with the contained in this act.” sistent petition Ham part As shown of the in the condemna italicized alleged quotеd, company enactment tion hereinabove and effect general statutes, charter, these as well as the 1855 amendments to its sought provisions applied petition have their to that case. The shown, not begun in the Chauvin condemnation is but that suit was general the enactment of both the law on railroad condemnation company’s original changing amendment of the charter n concerning provisiоns its condemnatio by title. As shown part quoted, judgment italicized hereinabove re language amendment to the company’s cited charter, changing exact part concerning thereof condemnаtion, and provided fixing damages. more it applied Yery liberal rule likely changes company acquire these enabled the on expense its St. Louis line with than less it have' could provided. any event, only undеr the done method company proceed is that in both cases reasonable- conclusion laws, ing- purport which did not to vest under the absolute fee title, authority no and that the court had thereafter to do judgment. in Bradley Dalton, CC., judgment is affirmed. *5 foregoing opinion C.,
PER is CURIAM: The Hyde, judges All the opinion court.