Clark v. St. Louis Transfer Railway Co.

30 S.W. 121, 127 Mo. 255, 1895 Mo. LEXIS 249
CourtSupreme Court of Missouri
DecidedMarch 5, 1895
StatusPublished
Cited by15 cases

This text of 30 S.W. 121 (Clark v. St. Louis Transfer Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. St. Louis Transfer Railway Co., 30 S.W. 121, 127 Mo. 255, 1895 Mo. LEXIS 249 (Mo. 1895).

Opinion

Bubgess, J.

This is ejectment for two small tracts of land in the city of St. Louis. The petition is in two counts. In the first count the land is described as a “strip of land hr city block 1222 of the city of St. Louis described as follows: Commencing at a point * * * one hundred and nineteen (119) feet and two (2) inches west from a point where the southern line of said land so conveyed by Bissell to Clark intersects the west line of Hall street; thence running west along said southern line of said land conveyed by Bissell to Clark, twenty-six (26) feet to the northeast line of the right of way conveyed by William Gh Clark to the St. Louis Transfer Railway Company by deed dated thirteenth day of June, 1895, thence running westwardly along the northeastern line of the said right of way one hundred and three (103) feet to the center line of Gringrass Creek; thence northwardly along the said center line of Gringrass Creek twenty-seven (27) feet to the foot of the slope of the embankment built by the St. Louis Transfer Railway Company, and on which it has laid its tracks; thence southeastwardly, following the foot of the slope of the said embankment, * *

In the second account the land is described as “a strip of land in city block 1223 in said city, beginning at a point in the division line between the land formerly owned by Adolphus Meier and the land formerly owned by Leroy Kingsland, ninety-nine (99) feet eastwardly from the point where the said division line between Meier and Kingsland intersects the eastern line of First street, being the point where the said division line intersects the east line of the slope of the embankment [261]*261built by tbe St. Louis Transfer Railway Company, and on which are now located its tracks; thence running west along said division line between Meier and Kings-land sixteen (16) feet to the northeast line of the right of way conveyed by ¥m. Gr. Clark to the St. Louis Transfer Railway Company by deed dated June 13, 1885, and recorded in the office of the recorder of deeds for the city of St. Louis, in book. 768, page 32; thence northwest along the northeast line of said right of way so conveyed by William Gr. Clark to the St. Louis Transfer Railway Company two hundred and thirty (230) feet to the intersection with the eastern line of said First street, thence northwardly along the eastern line of said First street, fifty-one (51) feet to the foot of the slope of the said embankment; thence southeastwardly along the foot of the slope of said embankment two hundred and eighty-five (285) feet to the place of beginning.”

Defendant answered, admitting that it was a corporation, that it was in possession of a small portion of the land described in each count in the petition, and that plaintiff was entitled' to judgment therefor, but denied all other allegations. Then, by way of cross bill, defendant alleged that it, was a railway corporation incorporated under the laws of Missouri; that prior to the seventeenth day of June, 1885, the defendant had “surveyed, located and projected” its railroad in Hall street on a survey line midway between its two tracks to a point in Hall street two hundred and fifty feet south of the north line of Bremen avenue, being eleven and sixty-three hundredths feet east of the center of Hall street at said point; that from there it had surveyed, located and projected” its survey line on certain curves and tangents fully described in the cross'bill, across city blocks 1222 and 1223 over the lands of William Gh Clark into the center of First or McKissock [262]*262street; that this survey line was with the knowledge and consent of plaintiff plainly marked on the ground by stakes set twenty-five feet apart by the surveyor who made the plat, and that, prior to said day, plaintiff was made aware and well knew said location, that is to say, the line of stakes; that thereafter and prior to the seventeenth day of June, 1885, plaintiff agreed and intended to sell to defendant, and defendant agreed to purchase from the plaintiff, the right of way, fifteen feet on each side of said line so “plainly staked;” that by deed dated the thirteenth day of June, 1885, and acknowledged and delivered on the seventeenth day of June, 1885, the plaintiff executed to defendant a deed with a map annexed, and which will hereafter be referred to as Exhibit A.

Defendant further states that the description contained in said deed does not in fact, by reason of a mutual mistake, describe the right of way that both parties intended and on its face it purports to convey. Then the cross bill set out the description in the deed from Clark and wife to defendant, dated thirteenth of June, 1885. The defendant then averred that the plat-is erroneous, and fails to describe the property intended by both parties, and that all of its calls to both Hall and McKissock streets are erroneous. The cross bill then described specifically the alleged mistake made by the surveyor who placed the stakes, and who afterward made an erroneous plat by reason of having laid down both Hall and McKissock streets wrongly on the ground. It then described the. property which it averred was intended by both parties as a tract fifteen feet on each side of .a certain center or survey line, starting from a point in the center of its tracks as now laid in Hall street two hundred and fifty feet south of the north line of Bremen avenue, as its initial point. It avers that this description of this line differs fromthe line described [263]*263in the plat, inasmuch as the plat does not show any initial or ending point, either in Hall or McKissock street, and a different length of tangent, and does not show the amount of angle consumed on either curve. The defendant then stated that by innocent mistake it had built its line of road so as to occupy a part of defendant’s lands, giving a full description of it. Defendant then offered to release the land and pay certain damages which it alleged to be reasonable. It then stated that said deed and plat were incorrectly written and drawn by the “scrivener” through mistake and ignorance of the true location of the defendant’s railroad on Hall street with reference to the “true center of said street and of the true centers of Hall and First or McKissock streets,” whereby all the land lines given in the conveyance, including those of Hall and First streets were wrongly stated in the deed.

The answer and ■ cross bill conclude with a prayer for the correction of the plat, and also deed from plaintiff and wife to defendant., and that they be compelled to execute to defendant a new deed correctly describing the land intended to be conveyed.

Plaintiff filed a reply denying all new matter set up in the answer and cross bill.

There was a judgment for plaintiff on both counts in the petition for possession of the land and damages. Defendant appealed.

By the answer there are interposed two defenses, one raised by the denial of the allegations in the petition, the other, equitable, raised by the allegations in the cross bill, in which it is alleged that the land intended to be conveyed to defendant was, by mutual mistake between the parties to the deed, misdescribed, and asking that the deed be reformed.

Defendant’s first contention is that both parties to the deed clearly intended that the 'center line of the [264]

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Bluebook (online)
30 S.W. 121, 127 Mo. 255, 1895 Mo. LEXIS 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-st-louis-transfer-railway-co-mo-1895.