author: Napton, Judge, Richardson, J.

text:
    The State, Respondent, v. Houser, Appellant.
    1. State v. McO’Blenis, 24 Mo. 402, affirmed.
    2. A deposition of a witness, taken upon the preliminary examination before a committing magistrate, in the presence of the accused, is not admissible in evidence on the trial upon proof that the witness is beyond the jurisdiction of the court.
    3. If, however, the absence of the witness at the trial is procured by the defendant, the deposition would be admissible in evidence.

      Appeal from St. Louis Criminal Cov/rt.

    Stephen H. Houser was indicted in Gasconade county for the murder of William D. Farris. The cause was removed by change of venue to the St. Louis criminal court. At the trial, at the May term, 1857, the deposition of one Mary Henson, taken before the examining magistrate, was read in evidence against the defendant. It appeared that at the time of the homicide — July, 1853 — said Mary Henson resided in Gasconade county; that when the venue was changed she was recognized to appear in the St. Louis criminal court; that she did appear in the court at the November term, 1856 ; and was again recognized to appear at the January term, 1857. At that term the cause was continued by the State on account of her absence. It appeared that said Mary Henson resided in Gasconade county from the date of the homicide until the fall of 1856; that about the date of her attendance in St. Louis at the November term, 1856, of the St. Louis criminal court, she disappeared and has not been since heard of. It also appeared that various subpoenas, directed to said Mary Henson, had issued from the St. Louis criminal court and had been returned “ not found” by the sheriff of Gasconade county and the marshal of St. Louis county.
    The deposition was admitted and read. The defendant was convicted of murder in the first degree and was sentenced to be hung.

      U. Wright, for appellant,
    contended (among other things) that the introduction of the deposition of Mary Henson against the accused was a grave and manifest violation of the bill of rights, and cited 2 Jones (Folio) 53; 6 Howell’s State Trials, 771; 2 Russ, on Or. 888 ; 8 Carr. & P. 167; 6 Cow. 163 ; 5 Rand. 701; 14 Mass. 237.
    Mauro, (circuit attorney,) for the State.
    I. The deposition of Mary Henson was admissible. The constitution does not interfere with the admission of such testimony. (State v. McO’Blenis, 24 Mo. 402.) The accused then met the witness face to face. The examination was competent to be read in evidence under some circumstances, and its admissibility is dependent entirely upon the rules of evidence. The State made every exertion in its power to secure the attendance of the witness. It could not possibly do more. If the witness were in fact dead she could not have been further beyond the power of the State. This deposition was not only evidence but the best evidence. What difference would it have made if the death of Mary Henson had in point of fact been established, for she could not have been further beyond the control of the State, and her death would not in the least degree have improved the character of the testimony ? Had this been a civil suit the deposition would have been admissible under the facts presented. (1 Grecnl. Ev. p. 217.) The rules of evidence in civil and in criminal cases are the same. (1 Greenl. Ev. p. 86 ; 1 Rose. C. Ev. 73; 2 Russ, on Or. 588 ; U. S. v. Macomb, 5 McLean, —; 18 Pick. 437; 15 Ala. 753 ; Davis State, 17 Ala. 357 ; State v. Hooker, 17 Yerm. 658 ; U. S. v. Hood, 3 Wash. C. C. 444 ; Rex v. Watson, 2 Stark. 116 ; 26 How. St. Tr. 376 ; U. S. v. Britton, 2 Mason, 464.)
   Napton, Judge,

delivered the opinion of the court.

The principal question in this case is, whether the deposition of a witness taken before the examining court can be used against the prisoner on his trial, it appearing that the witness is beyond the jurisdiction of the court.

In the case of the State v. McO’Blenis, 24 Mo. 402, it was held, that where the witness was dead his deposition was admissible. The propriety of this decision has been questioned, and the subject has again been elaborately discussed with a view to its examination by this court as it is now constituted. This investigation by this court has been made, and it will be perhaps sufficient to say it has resulted in a conclusion to adhere to the former opinion. Without undertaking to add any thing to the reasoning upon which the decision of the court was placed in the former opinion, I will merely advert to one or two historical facts which seem to confirm the view then taken of the subject.

Upon the passage of the stamp act by the British parliament, one of the first of the colonial assemblies that passed resolutions in regard to it was the general assembly of Virginia. In these resolutions the general assembly assert that they were entitled to enjoy all the rights and privileges which were secured to British subjects. They declared “ That the first adventurers and settlers of this his majesty’s colony and dominion of Virginia brought with and transmitted to their posterity, and all other his majesty’s subjects since inhabiting in this his majesty’s colony, all the privileges and immunities that have been at any time held, enjoyed and possessed by the people of Great Britain.” They further resolved, “ That by the two royal charters granted by King James I., the colonies aforesaid are declared entitled to all privileges of faithful liege and natural born subjects to all intents and purposes as if they had been abiding and born within the realm of England.” In 1774 the delegates from the colonies assembled in Congress, and one of their first acts was a declaration of rights of the colonies. Among other resolutions, they declared That our ancestors who first settled these colonies were, at the time of their emigration from the mother country, entitled to all the rights, liberties and immunities of free and natural born subjects within the realm of England.” “ That by such emigration they by no means forfeited, surrendered or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them as their local and other circumstances enable them to exercise and enjoy.” “ That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by the peers of the vicinage according to the cowse of that law.” “ That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization and which they have by experience, respectively, found to be applicable to their several local and other circumstances.” “ That these his majesty’s colonies are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.”

These declarations, and others not deemed necessary to be copied here, will be found to have been subsequently transfused into the bills of rights and constitutions of nearly all the original thirteen states and from these into the constitutions of those states which have since been formed. One of the first, perhaps the first, was the bill of rights adopted by Virginia in June, 1776, in which is to be found the clause almost literally copied in our constitution. That clause is: “ That in all capital or criminal prosecutions a man hath a right to demand the nature and cause of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he can not be found guilty,” &a. It is thus seen that these declarations were first made at a time when loyalty to Great Britain was professed and honestly entertained; that, so far from being supposed to introduce new principles, they were expressly and carefully pronounced to be the ancient rights and immunities which they brought with them from Great Britain, and which they considered themselves entitled to in common with all the subjects of Great Britain born within the realm of England. The common law and acts of parliament down to the fourth year of the reign of James I., adapted to their circumstances and the local laws of each colony, were the charters by which their right to life, liberty and the pursuit of happiness was to be secured and tested.

When the bill of rights, drawn up, I believe, by George Mason, and the constitution of Yirginia were adopted, Congress had not yet passed the declaration of independence. Although, so far as political principles and forms of government are concerned, we would of course look for material innovations upon such as had been previously established and which a separation from Great Britain necessarily produced, yet it would hardly be expected that in the midst of a revolution, when the minds of all men would be chiefly drawn to these contemplated or effected,political changes, attempts would be made in a constitution or bill of rights to introduce new codes of procedure or new principles of evidence to govern the progress of ordinary trials in civil or criminal cases. Our forefathers were satisfied with the common law, s'o far as its great leading features were concerned ; and they considered themselves as securing every thing that was important and valuable in relation to mere municipal rights of persons and property when they solemnly and repeatedly adopted it and declared it to be their birth-right. This common law they did not understand as the common law under the Plan-tagenets or Tudors or Stuarts, but as it was understood at that day, both in England and this country, when the revolution of 1688 and the subsequent parliamentary and judicial constructions had restored it to its primitive purity, and abolished its occasional abuses in bad times and under corrupt administrations.

Now it is admitted that no case is to be found in England in which the deposition of a witness, taken in the presence of the accused, has been excluded where the witness has died since the examination. Numerous cases have been cited where such depositions have been admitted. It is true that there may be a few cases in which depositions, taken before coroners in England without any opportunity of cross-examination, have been used against the accused, where the witness subsequently died; but the authority of such cases is questioned, even in that country, by their ablest writers on common law — Starkie, Roscoe, Russell — and it is doubtful whether such testimony would be now received. At all events, such testimony has never been permitted in this country, and in England its admissibility has been altogether placed upon the peculiar dignity and importance attached to the office of coroner; and no such reasons exist here. So, in England the times have been when the accused was not allowed witnesses, nor counsel, but such abuses of justice had been swept away long before our separation from that country. Many other abuses would probably be found, especially in prosecutions for political offences; but our ancestors did not adopt the constructions given to the -law of England by Jeffries, but as it was understood in its purity, as it was settled in their highest courts in times when the rights of British subjects were well understood and thoroughly confirmed, and, even then, modified as it may have been to some extent by local laws and usages in this country. But we find further, that not only is there no authority in England which excludes the testimony of a deceased witness, under the circumstances accruing in the case of McO’Blenis, but none is to be found in this country. A case is referred to from Tennessee, in the opinion of Judge Leonard, which I have not seen, but this case is overruled, and two cases are found from that state, of a later date, which hold the law to be as it was decided in the O’Blenis case. It may be said then with propriety that there is no authoritative decision in this country excluding such testimony.

I have referred particularly to the Virginia bill of rights, because it was the first that was framed in this country, following substantially and essentially, though more in detail, the declaration made two years before by the congress of all the colonies; which latter was in truth the ground-work upon which not only the Virginia bill of rights, but nearly all the constitutions and bills of rights subsequently framed, were based. Moreover, as in Kentucky, so in Missouri, our introduction of the common law was framed upon the model of the Virginia statute, and adopted the British law, common and statutory, with the same modifications and up to the same period (the fourth year of James I.) as had been adopted in Virginia. The provision in our constitution now under consideration is also manifestly a copy, substantially, of the Virginia bill of rights, for it is not to be supposed that the substitution of the words “ face to face” for the word “ confronted” was designed to make any change in the meaning.

In the case of Finn v. The Commonwealth, 5 Rand. p. 701, oral proof of what had been testified to by a witness before an examining court was offered, but excluded on the ground that the witness (whose testimony was sought to be reproduced) was not dead. This would seem to concede that if the death of the witness had appeared, the evidence might have been given. The principle is expressly recognized in Johnson v. The State, 2 Yerg. 58; Thorp v. State, 15 Ala. 792; Beebe v. The People, 5 Hill, -; Bostwick v. The State, 3 Humph. 345; 1 Root, 7.) There are other cases said to decide the same principle which I have not examined.

The admission of dying declarations, as they are termed, seems to occupy precisely the same ground as that of the deposition of the deceased witness. If the constitution excludes the one it must exclude the other. To say that the witness who must meet the accused “ face to face” is he who repeats what the dying man has said, is a mere evasion ; and if the constitution admits of this evasive interpretation in relation to the dying declarations, it is just as easy to apply the same rule of construction to the deposition of the dead witness. It may with as much propriety be said that the witness, who rehearses according to the rides which the law lias provided in sucli cases what has been testified to orally by a deceased witness in a former trial, in the presence of the accused, or the magistrate who certifies to the deposition where the testimony has been reduced to writing, is the witness referred to in the constitution, whose presence “ face to face” before the accused is provided for. But it is plain that in neither case is he the witness whose testimony is to affect the life or liberty or property of the accused. It is the dying man who is speaking through him, whose evidence is to have weight and efficacy sufficient it may be to take away the prisoner’s life. The living witness is but a conduit pipe — a mere organ, through whom this evidence is conveyed to the court and jury. So is the magistrate who takes the deposition, or the by-stander who is able to repeat what has been testified to on a former trial by a witness in the presence of the accused. These two classes of testimony occupy the same ground, so far as the constitutional provision in question is concerned, except that in the case of dying declarations the real witness is not on oath and his declaration need not be in the presence of the accused. In the case of the deposition, the witness speaks under the sanction of an oath, and only in the presence of the accused, when an opportunity for cross-examination is afforded.

The admissibility of dying declarations has not been questioned. They have been frequently resorted to in this state, as well as elsewhere, without any suggestion ever having been made of a conflict with this constitutional provision. To exclude them on this ground would not only be contrary to all the precedents in England and here, acquiesced in long since the adoption of these constitutional provisions, but it would be abhorrent to that sense of justice and regard for individual security and public safety which its exclusion in some cases would inevitably set at nought. But dying declarations, made under certain circumstances, were admissible at common law, and that common law was not repudiated by our constitution in the clause referred to, but adopted and cherished. The deposition of the deceased witness was also permitted at common law; and the same rule of interpretation which allows the former under the constitution will admit the latter.

We shall not therefore disturb the decision of this court in the case of McO’Blenis. I do not know that my colleagues adopt the reasons which I have suggested, but all the court concur in letting the decision stand.

The point made in this case we do not however consider determined by the case of McO’Bienis. It may be that, so far as the constitutional provision referred to is concerned, the reason for admitting the deposition is just as conclusive in the one case as the other. If the witness is beyond reach of process, his presence is as utterly unattainable as though he were dead. But it does not follow that every kind of evidence, which this provision of our constitution does not exclude, is therefore. legitimate testimony. The constitution did not propose to lay down specific rules of evidence. Its framers only thought it necessary to declare general principles. To determine whether any particular testimony is to be admitted or excluded we must look to the law as well as the constitution. Although it may not conflict with the constitution, it does not follow that it is therefore competent evidence. The admissibility of depositions in civil and criminal cases depends upon different grounds. It has been urged in this case that, with the exception of the constitutional provision which has been so often referred to, they both occupy the same grounds. Such is not understood to be the law. If it was, then the deposition or testimony taken before the examining court would be admissible in every case where the witness was prevented by bodily infirmity from attending court, or was at the time of trial more than sixty miles from the place of trial, or was a judge engaged in his official business. This question is to be determined by the common law, and not by our statute, which applies only to civil cases.

In England no authority is to be found, so far as this examination has discovered, where, in a criminal case, a deposition, taken under the statutes of Phil. & Mary, was admitted merely because the witness was beyond seas or out of the reach of process of the court. In Morley’s case, 2 Kelyng, 55, the resolution of the judges was that in case of death or absence by procurement of the prisoner or his friends, or in case of sickness from which there was no probability of recovery, the deposition could be used. It was at the same time held, that it was not sufficient to show that endeavors had been used to find the witness and that he could not be found. In Buller’s N. P. 242, it is said that “ if the witnesses examined on a coroner’s inquest be dead, or beyond sea, their depositions may be read, for the coroner is an officer appointed on behalf of the public to make inquiry about the matters within his jurisdiction.” This remark has been questioned, both as it related to depositions before coroners when the accused was not present, and especially so far as it declares that the mere absence of the witness will admit the deposition. (2 Starkie, 4, 491; Phillips Ev. 373.) The authorities cited by Buller to support this position are Bromwich’s case, 1 Lev. 180, and the case of Thatcher & Waller, T. Jones, 53. In Bromwich’s case the witness was dead, and there was therefore no such question before the court, and in Thatcher and Waller the deposition was one taken before the coroner, and, as we have seen, some peculiar importance was attached to the proceedings of this officer, and the court said that if the deposition had been taken before a magistrate it could not have been read. In Rex v. Huyon, 8 Carr. & P. 167, a deposition was offered, the witness being beyond seas, and Coltman, J., said that it was inadmissible imless by consent.

In this country the decisions have been the same way. In Beebe v. The People, 5 Hill, 32, absence from the state was held not to warrant the admission of the deposition. In Tharp v. The State, 15 Ala. 746, the same doctrine was asserted.

Upon principles of public policy the admission of such depositions, in the mere absence of the witness, is extremely questionable, so that both principle and precedent concur in excluding them. If the absence of the witness was procured by the prisoner the rule would be different.

We do not deem it necessary to notice particularly the other points made in this case. As the case will be tried again, it is not probable that such questions will occur upon the second trial. The judgment- is reversed and the cause remanded.

Richardson, J.

I wish merely to add that I do not approve of the doctrine laid down in the case of the State v. McO’Blenis, but I do not propose hereafter to oppose it, for having received the sanction of the majority of the judges who then composed the court, and having been since affirmed by my colleagues, the law may be considered as settled and the question at rest.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Gorman et al., Respondents, v. Pacific Railroad, Appellant.
    1. The owner of cattle is under no obligation to keep them on his own premises ; if, however, he should permit them to roam at large and they should go upon the track ofa railroad and be injured unavoidably, through no want of diligence and care on the part of the agents and servants of the railroad company, he would be without redress.
    2. The degree of care to be exercised by a railroad company in preventing the destruction of property or other injuries must be proportioned to the dangerous nature of the means and instruments employed by it.
    3. Though, as a proprietor, a railroad company is under no greater obligation to fence its road than any other owner of land is to fence the same, if the road be not fenced that fact should be considered in estimating the degree of care to be exercised by the company.
    4. Railroad corporations, like natural persons, are subject to such reasonable police regulations as the legislature may prescribe for the preservation of the lives and property of the people; the legislature has power to require them to fence their roads and to erect and maintain cattle-guards at the road crossings, or to respond in damages for all injuries arising from an omission so to do, although their charters contained no reservation of such a power.
    5. The 51st section of the general railroad act of February 24, 1853, (Sess. Acts, 1853, p. 121, 143,) requiring railroad corporations to erect and maintain fences along the lines of their roads where they pass through inclosed fields, and cattle-guards at all road crossings, was applicable to and binding upon the Pacific Railroad corporation -whether the provisions of said act were accepted or not by said corporation.
    6. In actions to recover damages for injuries sustained through the omission of a railroad corporation to fence its road as required by section 51 of the general railroad act of February 24, 1853, the question of care and diligence on the part of the corporation, through its agents and servants, can not arise. If the road be not fenced as required by law, it matters not that the highest care is exercised by the agents of the corporation.

      Appeal from St. Louis Law Commissioner's Cowt.

    This was an action to recover the value of three head of cattle alleged to have been killed by defendant through the negligence of its agents, in running over them a locomotive. It was further alleged that the cattle were killed at a point on the road where it ran through inclosed fields; that defendant had failed to erect and maintain fences as required by law; that the cattle were killed by reason of this failure.
    The evidence showed that the cattle were killed at a point where the railroad ran through inclosed fields which were used as cattle yards ; that the cattle killed were part of a lot of thirty or forty cattle that were placed in the cattle yards the night before the killing ; that the fences along the line of the road were broken down during the night and the cattle went upon the track and three of them were run over by a locomotive and killed. There was evidence touching the sufficiency of the fence and of the diligence and care shown by defendant’s agents in driving the locomotive.
    The following instructions were given at the instance of the plaintiff: “ 1. If the jury believe from the evidence that the cattle mentioned in the petition were killed by defendant, their agent, agents or servants, by running over or striking them with their locomotive or train, and that where the cattle got upon the track the road runs through inclosed fields, and that defendant failed to erect and maintain, on the sides of the road “through those inclosed fields, fences of the height and strength of a division fence and sufficient to prevent cattle and animals from getting on the railroad, and that it was by reason, of said failure that the cattle mentioned got upon the road, they will find for plaintiffs the value of the cattle so killed. 2. If the jury believe from the evidence that the cattle mentioned in petition were killed by defendant through carelessness, negligence or mismanagement of defendant, their agents or servants, they will find for the plaintiffs the value of the cattle killed or injured. 3. If the jury believe from the evidence that on the night prior to the occurrence plaintiffs’ cattle were in a pasture and that the fences were then all up and gates shut, and that by some means unknown they got out and without the knowledge or consent of plaintiffs, and that whilst so out they wandered upon the track of defendant and were killed by the locomotive and train of defendant, through carelessness of the agents or servants of defendant, they will find for plaintiffs.”
    The defendant asked the court to give the following instructions : “ 1. If the jury believe from the evidence that the engineer in charge of the train at the time of the accident was at his place on the engine, and attentive to his duties there, and as soon as he saw the cattle used all means in his power to stop the train, and if the jury believe that the defendant had erected a legal fence on each side of their road, and that the cattle got on the road by breaking down said fence, then the defendant has been guilty of no negligence and the jury will find for the defendant. 2. If the jury believe from the evidence that the injury to the cattle was the result of accident'alone, then the plaintiffs can not recover in this suit, and the jury will find for defendant. 3. If the jury find that after discovering the cattle on the track the engineer used all the means in his power to stop the train before coming to the cattle yards, and that he was running at the ordinary speed, then the company is not responsible for the cattle killed and the jury will find accordingly. 4. The law requires a fence, when built of posts and plank, to be four and a half feet high, and sufficiently close to turn small stock; and if the jury believe that the railroad company built such a fence, then they have complied with the law, and the plaintiffs’ cattle were unlawfully on the road. 5. If the jury believe that the fence built by the company would turn ordinary cattle, it is a sufficient fence in law, and the cattle were unlawfully on the track and were trespassers thereon, and in such case the plaintiffs being in fault first, they can not recover for killing them by the defendant’s locomotive. 6. Gates and bars being for the exclusive benefit of the adjoining proprietor, such adjoining proprietor was bound to keep them closed, and this was not part of the duty of the company. 7. If the jury believe from the evidence that the fence erected by the defendant at the place of the accident, and which was there at the time of the accident, was a post and plank fence four and a half 'feet high, and sufficiently close, this was a legal fence. 8. The only direction of the law in regard to fences made of plank and posts is, that it should be four and a half feet high and sufficiently close.” Of these instructions the court gave those numbered 1, 2, 5, 6 and 8, and refused those numbered 3, 4 and 7.
    The jury found for plaintiffs.

      S. T. & A. D. Glover, for appellant.
    I. The first instruction given at the instance of plaintiffs was erroneous. It declares that the defendant is bound by law to erect and maintain fences on each side of the road where it runs through inclosed fields, and for failing to do so is liable for every accident that may result directly or remotely from the want of such fences. The common law docs not require such fencing. (Towanda R. R. v. Murger, 5 Denio, 255 ; 4 Comst. 350 ; Clark v. Syracuse R. R. 11 Barb. 112; Railway Co. v. Skinner, 19 Penn. 303 ; 6 id. 472; Chicago & Miss. R. R. v. Patchin, 16 Ill. 198 ; Great Western R. R. Co. v. Thompson, 17 Ill. 131; 17 Ill. 541| 580 ; 2 Shelford on Railways, 679 ; 25 Verm. 122; Williams v. Michigan Central R. R. 2 Gibbs, 259.) Nor does the statute law. The legislature had no right to impose additional burdens upon the corporation. There is nothing to show that the company ever accepted the act of 1853.

      II. The defendant’s third instruction should have been given.

      J. R. Barrett, for respondents.
    I. Defendant by applying for and receiving from the county of St. Louis special taxes, amounting to $1,200,000, levied and raised by virtue of the act of February 24,1858, accepted said act. But it was not necessary that the company should accept said act to be bound by it. (Thorpe v. The Rutland & Burlington R. R. Co. 1 Williams, Yerm. 141.) By the common law of Missouri fences are not made to keep cattle in, but to keep them out. (4 Ohio, State, 424, 474.) The fences on the sides of the road wore insufficient, and defendant was therefore liable. (39 Maine, 273 ; 1 Williams, 141.) Plaintiffs were in no fault. Defendant was therefore liable for any damage done through carelessness or negligence. (8 Barb. 390 ; 14 Barb. 364; 23 Verm. 387; 24 Yerm. 487.) Even supposing the fence to have been in accordance with the requirements of the law, there was clearly gross negligence on the part of the engineer.
   Scott, Judge,

delivered the opinion of the court.

It has always been the understanding as to the law in this state that our statute concerning inclosures entirely abrogated that principle of the common law which exempted the proprietor of land from the obligation of fencing it, and imposed on the owner of animals the duty of confining them to his own premises. No conviction has more thoroughly occupied the public mind than this, and nothing would sooner arouse the attention of the community than an apprehension that the old rule of the common law was to any extent to be revived. As early as the 27th October, 1808, the act for regulating inclosures became a law, and from that time the people have rested in the belief that they incurred no responsibility and were not guilty of any fault or negligence towards others by turning loose their cattle, unless when their cattle trespassed upon fields inclosed in the manner prescribed by law. An injury to cattle, unless trespassing on fields legally inclosed, was redressed without any inquiry whether the cattle, when they received the injury, were on the land of the owner or that of the individual committing the wrong; and this court here takes occasion to express its dissent to the applicability in this state of the doctrine and spirit, of the case of the Kailway Company v. Skinner, 19 Penn. 304, which concludes with the opinion that an owner of cattle killed or injured on a railway has no recourse to the company or its servants; and that he is liable for damage done by them to the company or the passengers.” Our cattle in their range allowed by law do better than the Pennsylvania cattle running at large, which pick up a scanty subsistence on waste fields and lands.” The range, as it is called, is a source of wealth to many of our citizens, and nothing would induce them more resolutely to oppose the location of a railroad in their vicinity than the knowledge that it would impose on them the obligation of keeping their cattle and stock in inclosures. That obligation would not be confined to those in the immediate neighborhood of the road, for cattle, when not confined, frequently stray much farther from their proprietor than would bo supposed by those unacquainted with their habits. Many farmers have a sufficiency of uninclosed land for the pasturage of their cattle. Shall they be bound to inclose it at the peril of a suit for an injury caused by their cattle which may cost them their estates ? The other interests in the state ai’e not all to be made subservient to the railroad interest. That interest enters into competition with other pursuits with the advantages and privileges the law confers upon it, but there is nothing in it of so overshadowing a character that all other pursuits must yield to it. There are none who are not impressed with the importance of railroads, and their great utility as the medium of intercourse and commerce. No state that will keep pace with the age but must build and encourage them. But we should be cautious how we clothe them with privileges and immunities, at the cost of the rest of the community, which may enkindle a spirit -hostile to their existence and seeking its gratification in their destruction.

A railroad company is entitled to the free and uninterrupted enjoyment of the road which has been constructed for its use. No one can molest it in the enjoyment of this right, and lie who by his wantonness or his negligence has received an injury by its machinery or otherwise has no just cause of complaint. But the steam engine, whilst it is very useful, is at the same time a very dangerous agent, and he who undertakes to use it must, in order to avoid doing injuries to others, employ a skill and diligence proportionate to its dangerous nature. The diligence necessary to avoid injuries in driving an ordinary wagon on the highway furnishes no idea of the care and circumspection exacted of those who use the steam engine. Although the duty of the company as a carrier extends only to the passengers and freight on the trains, and the law of carriers is only applicable to .it as the transporter of passengers and freight, yet as regards the persons and things to which it does not stand in that relation it is under that law which enjoins on it the duty of so using the thiugs over which it has control as not to do harm to others, and which exacts of it a caution and prudence commensurate to the dangerous nature of the means which it employs. Whilst its first duty is the preservation of the passengers and freight, yet, consistent with that duty, in order to avoid injury, it is required to use the care and diligence of a prudent man, knowing that he is using a powerful and dangerous agent. As proprietor, the company is under no greater obligation to fence its road than any other owner of land. But, in the' event of an injury, the fact that the road was not fenced must and should exercise an influence in weighing the degree of care to be employed by the company. When an injury is done, the omission to fence will be weighed along with the other circumstances in determining the measure of diligence to be used by the company or its agents. The want of the fence will increase the care required in order to prevent wrongs. In leaving the road unprotected the company .is aware tliat cattle may stray upon it, and its exertions must be increased in order to avoid injuries under such circumstances. The owner of cattle, as we have said, is under no obligation to inclose them. If he permits them to go at large and they should wander upon the road and be injured Unavoidably, he can have no redress ; but if a loss occurs for the want of care and attention on the part of the company or its agents, it must be repaired by those who have caused it. It may be asked, why make the company increase its diligence for the want of a fence, and not hold the owner of cattle in the vicinity of a road guilty of negligence in not inclosing thorn ? The answer is obvious. The obligation of the company to increased care arises from the dangerous nature of the business it pursues. The care in conducting any business must be proportionate to its dangerous nature. This is a universal principle not applicable alone to railroad companies. Although railroad corporations are organized for the public benefit, are matters in which the state takes a deep interest and regards as of public concern; although they may be looked upon as bodies endowed with capacities for the promotion of the public good and for the diffusion of advantages to the state, yet it must not be overlooked that such corporations are entirely managed by private individuals over whose selection the state has no control, and that their pecuniary profits belong exclusively to the companies and their stockholders. Here there is a motive to selfishness. In this respect they do not differ from any other private corporation whose sole aim is the making of money, and they should be subjected to the same control, for the safety and protection of the rights of individuals.

We are fully aware that the views herein expressed are seemingly in conflict with opinions declared in some of the states in relation to injuries done to animals by railroads. That difference arises in a great measure from the different views entertained in regard to the duty of the owner as to the confinement of his animals. Those courts which maintain that a railroad company is not liable for the destruction of animals being on the road, conceive tbat the law imposes on the owner the duty of confining them; and if he permits them to wander abroad and they are killed by a company’s steam engine, he can not recover damages for their loss, because he himself committed a fault and was guilty of negligence in not confining them. We conceive that the owner of animals is by our law under no obligation to fence them; that in not confining them he commits no fault, nor is he guilty of any negligence; that a railroad company, though not subject to an action in the nature of trespass vi et mmis for an injury done by its servants with a steam engine unless by its command or with its assent, is yet liable to a suit in the nature of an action on the case for injuries done by its servants resulting from their negligence. (4 Wharton, 143.) Under section 51 of the act of 24th February, 1853, although the fences and cattle-guards thereby required are constructed, yet the companies are made liable for injuries to animals if negligently or willfully done. Although the owner of animals is not bound to fence them in, yet there may arise a state of circumstances showing that he was guilty of such willfulness or negligence in regard to his animals as would prevent a recovery of damages for their destruction. The cases of the C. H. & D. R. R. Co. v. Waterson & Kirk, 46 Ohio, State, 430; Kerwhacker v. The Cleveland, Columbus & Cincinnati R. R. Co. 3 Ohio, State; Darmer v. S. Carolina R. R. Co. 4 Rich. 334, furnish a support to most of the views we have above expressed.

Another question in this case is, whether the company under the 51st section of the general railroad act of the 24th February, 1853, was bound to fence the road when it passed over inclosed fields. The 56th section of the act subjects railway companies then existing and those thereafter to be created to the provisions of the 51st section. It is insisted that by the original charter of the company, as amended previously to the passage of the act of 24th February, 1853, there was no constitutional authority in the general assembly to alter its charter by imposing upon it the burden of fencing the road, an obligation which was not imposed by the original law creating the company. The original charter was subject to the 7th section of the act concerning corporations. (R. C. 1845, p. -,) by which the general assembly reserved to itself the right of suspending and repealing it. This power was yielded up by the act of March 1, 1851. (Sess. Acts, 1851, p. 270, sec. 4.) It was therefore maintained that, as the charter stood at the date of the act of February 24,1853, there was no power in the legislature to compel the company to fence its road, as the exercise of such a power would violate that provision of the constitution of the United States which prohibits the passage of laws impairing the obligation of contracts.

It is settled that a private charter is a contract between the government and the company to which it is granted, and that as such it is secured by the constitution of the United States from violation by the state conferring it. But while private charters are thus protected it, is also true that corporations, like natural persons, are subject to those regulations which the state may prescribe for the good government of the community. There is no reason why corporations should not be subject to police regulations as well as natural persons. The injury resulting from the infraction of police laws by corporations may be as great if not greater than those caused by the violation of them by individuals. The motive of the law in requiring railroads to be fenced is not the security of cattle only, but chiefly the preservation of the persons and lives of passengers which would be greatly endangered if cattle were not restrained from wandering upon them. Where such dangerous and powerful agents as steam engines are brought into use, there should be a power in the legislature to prescribe such reasonable regulations as will prevent injuries resulting from their employment. The foresight of man is not competent to the task of prescribing in a charter all the regulations which time may show to be necessary for the security of the interests of the people of the state against injuries caused by the introduction of new, powerful and dangerous agents for carrying on -her intercourse and commerce. The charter must be taken subject to the understanding that in its operation affecting the interests of society it will be, like individuals, liable to be controlled by such reasonable enactments as may be dictated by a sense of what is required for the preservation of the persons, lives and property of the people, such enactments not contravening the expressed or plainly implied provisions of the charter. Our late statute giving relatives a right to recover damages when a person is killed is an instance of this police power over railroad corporations. This act has greatly increased the liability of companies. It has subjected them to actions to which they wore not liable at the date of their charters. It has not fallen under our observation if the constitutionality of such laws has been questioned. In the case of Thorpe v. The Rutland Railroad Co. 1 Williams, Verm., 141, the constitutional power of the legislature to pass a law very similar to that under consideration underwent examination. The act imposing on the company the duty of maintaining fences on the lines of their road, and also to construct and maintain cattle-guards, was passed after the company had been incorporated. The court held that the legislature had the same control in regard to the business and profits of a corporation which it has to that of natural persons ; that the legislature had the power to require existing railroad corporations to maintain cattle-guards at all crossings, or to respond in damages for all cattle injured by their trains through such omission ; that this subject came clearly within the police of the state, the power to regulate which resides inalienably in the legislature ; that the legislature may by general laws impose such obligations and restrictions upon railroads in regard to their business and for the security of the piiblic interests as to materially affect their profits; The case of Suydam v. Moore, 8 Barb. 367, does not contravene the principles maintained in the foregoing one. The judge, in the opinion in the Yermont case, cites Suydam v. Moore as sustaining the doctrine therein expressed. To the same effect is the case of Waldron v. The Renssalaer & Saratoga R. R. Co. 8 Barb. 390. In the case of Lyman v. The Boston & Worcester R. R. Co. 4 Cush. 288, it was held that a statute making the proprietors of railroads responsible for injuries by fire communicated from their locomotive engines applied to railroads established before as well as since its passage, extends as well to estates, a part of which was conveyed by the owner, as to those of which a part is taken by authority of law for the purposes of a railroad. So, in the case of Norris v. The Androscoggin R. R. Co. 39 Maine, 273, where railroad corporations, required by their charter to keep and maintain legal and sufficient fences on the exterior lines of their roads, for neglecting that duty, were made liable to a forfeiture of one hundred dollars per month by a subsequent act; it was held, that the act, being remedial and for the protection of property peculiarly exposed by the introduction of locomotive engines, applied to corporations existing before its passage.

The 51st section of the act of the 24th of February, 1853, requires railroad corporations to erect and maintain fences on the sides of their roads where the same passes through inclosed fields, and also to construct cattle-guards at all road crossings, and enacts that until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, or other animals thereon. In action's to recover damages for injuries suffered by the omission to comply with this enactment, it is clear that the question of negligence or of care and diligence can not arise. The liability to damages is imposed for not erecting the fence or cattle-guards; and howsoever great a degree of care may have been employed by the agents of the company, it will be no defence, as the right to recover is made to depend only on the fact of an injury being done and the omission to build and maintain suitable fences and cattle-guards. (Suydam v. Moore, 8 Barb. 308.)

It is singular that the plaintiffs did not introduce at the trial and put upon the record the evidence of the acceptance by the Pacific R. R. Company of the provisions of the act of February 24, 1853, and thereby have relieved the court of the labor of a portion of this investigation. We can only look at the facts in the record, unless they are of that class of which we are required to take judicial notice. We can not take judicial cognizance that the Pacific R. R. Company has accepted the provisions of the act of 1853, although we may personally know that the company never omits to avail itself of it when it is favorable to its interests, even to the taking a million and upwards under it, and then not hesitate to require proof of its acceptance of it. This matter would not be noticed but for the frequency with which the question of the acceptance of that act by the railroad companies has been raised, and the seeming belief on the part of litigants with those companies that the courts will take judicial notice of their acceptance of the provisions of that act.

According to the views expressed in the foregoing opinion there was no error in the court below in the giving or refusing of instructions.

The judgment is affirmed,

Judge Napton concurring; Judge Richardson not sitting.


text:
    Funkhouser, Plaintiff in Error, v. Langkopf, Defendant in Error.
    1. A survey ky the United States of the common confirmed to the village of Carondelet by the act of Congress of June 13, 1812, was not necessary to enable her to maintain an action for the possession of the same.
    2. Nor was it necessary that such survey should be made in order that the statute of limitations might commence running against Carondelet in favor of an adverse possession of a portion of said common.
    3. Previous to the passage of the acts of February 6, 1839, and of March 3, 1851, (Sess. Acts, 1839, p. 211, Sess. Acts,'1851, p. 148) — the former of which authorized Carondelet to lease, the latter to dispose absolutely of her common — she might have maintained an action of ejectment to recover possession of any portion thereof adversely held : consequently, the statute of limitations might have commenced running against her in favor of an adverse possessor.

      Error to St. Louis Land Court.

    This was an action in the nature of an action of ejectment to recover possession of lots numbered 172 and 173, in the subdivision of Carondelet common, south of the river Des Peres. Suit was commenced June 29,1854. Defendant in his answer admitted possession of so much of said lots as was embraced by United States survey No. 3317, commonly called “ Deschamps’ survey he denied the title of plaintiff.
    It was admitted in evidence that the plaintiff had by regular chain of conveyances all the title of the town of Caronde-let in and to the lots in controversy. The defendant set up a title under a confirmation by the act of Congress of July 4, 1836, to one J. B. Deschamps or his representatives. Defendant had all the title of Deschamps by regular conveyances from his representatives. It was admitted in evidence “ that defendant and those under whom he claimed had had continuous possession of- the land in dispute from the year 1825 to the present time, claiming the same as their own adversely to all the world.”
    The plaintiff asked the court to give the following instructions : “ 1. The title of the inhabitants of Carondelet to commons under the acts of Congress of June 13, 1812, May 26, 1825, and January 27, 1831, and the official survey and designation of said commons by the surveyor general, is superior to the title of defendant under the confirmation of 1836. 2. There is no evidence in the case competent to overthrow or impair the survey and designation of the commons read in evidence by the plaintiff; and the jury will therefore regard the same as a valid and subsisting survey. 3. The statute of limitations did not commence to run against the inhabitants of Carondelet in respect to said commons until the date of the approval of said survey and designation by the surveyor general. 4. If the jury believe from the evidence that the survey of the Carondelet commons as [was] made by Joseph C. Brown and approved by the surveyor general of Illinois and Missouri on the 29th of July, 1834, and that the action now pending was commenced on the 29th day of June, 1854, then the plaintiff is not barred by the statute of limitations.” Of these instructions the court gave those numbered 1 and 2, and refused those numbered 3 and 4.
    The defendant asked the court to instruct the jury as follows : “ 1. The jury is instructed that the title of those claiming under the confirmation to Robidoux in this cause is better than that of those claiming under the confirmation of common to Carondelet. 2. If the jury believe from the evidence that the defendant and those under whom he claims title had been in quiet and uninterrupted possession of so much of the land in question as is included within the lines of the Deschamps survey, claiming to be the owners thereof for twenty years prior to the commencement of this suit, and if such claim has been under color of title, the defendant is entitled to a verdict; and such claim has been under color of title if the jury believe the deeds read in evidence by defendant to be genuine.” The court gave the instruction numbered 2 and refused that numbered 1.
    The jury found for defendant.
    Field, for plaintiff in error.
    I. The court erred in allowing the defendant, upon proof of twenty years’ possession of the premises in dispute, the benefit of the statute of limitations; for the date of the incorporation of the inhabitants of Carondelet was not shown at the trial and does not appear on the record. The precise point was decided in Reilly v. Cliouquette, 18 Mo. 225. According to this authority it was essential to the defendant’s right to prescribe under the statute of limitations that the inhabitants of Carondelet were incorporated more than twenty years before the commencement of this suit.
    II. Prescription under the statute of limitations did not begin to run against the plaintiff, claiming under Carondelet, in respect to a lot in the commons, until there was a survey and designation of the commons according to law. This suit was commenced within twenty years from the establishment of tlie survey. It was approved July 29, 1834. (See West v. Cochran, 17 Howard, 416 ; Reilly v. Chouquette, 18 Mo. 225.)
    III. The statute of limitation did not commence to run against the corporation of Carondelet until it was vested by the legislature of Missouri with the power of disposing of the land. The inhabitants of Carondelet were first incorporated August 2, 1832. The town first acquired its powers to lease its commons by the act of February 6, 1839. (Sess. Acts, 1839, p. 211.) The power to grant in fee was first granted March 1, 1851. (Sess. Acts, 1851, p. 158.) In Spanish times commons were inalienable. (New Orleans v. United States, 10 Peters,-.) The treaty of cession contained a stipulation that all rights of property should remain inviolate. The act of Congress of June 27, 1831, relinquished the commons to the inhabitants of Carondelet “ to be regulated or disposed of according to the laws of the state of Missouri.” There was no law of Missouri in respect to the regulation or disposition of the land in dispute until 1839 and 1851. Up to 1839 the commons of Carondelet were loft by the United States and the state of Missouri precisely in the same condition in which they were placed by Spanish despotism, a tract dedicated to the public and common use of the inhabitants for the supply of timber and the depasturing of cattle. Such property was not liable to prescription by the Spanish law. (Escriche, voc. prescripción.) The civil law corresponded with the Spanish law. Nothing could be prescribed for unless it was the subject of grant. (Domat, § 2218.) The laws of France and of Scotland, following the civil law, adopted the same distinction. (Pothier Traite de prescription; Fer-riere, Coutume de Paris, Article 113; Erskine’s Institutes, 794 et seq.; 2 Stair’s Inst. 666 et seq.; see also Duplessis Cout. de Paris, 487; Hoepfner’s Comm. § 395.) The English law of prescription under the statute of limitations differs only in form from the civil law. The latter confers expressly a right; the former in terms only bars a remedy. The difference is obviously nothing in substance. It has now come to be settled that possession under the statute of limitations, by extinguishing the remedy of a former proprietor, confers a complete title on the possessor; and prescription under the civil and English laws are identically the same thing. (See Biddle y. Mellon, 18 Mo. 385 ; Reilly y. Chouquette, 18 Mo. 225.) Possession, to constitute a bar under the statute of limitations, must be adverse to the true owner. The term “ adverse possession,” taking the place in modern times of the old word “ disseizin,” has acquired in the law a technical signification. It always implies a claim and color of title on the part of the possessor. "Where no claim of title exists, the possession is not adverse in law, and however long continued will never ripen into a title against the true owner. If, as in Biddle v. Mellon, 13 Mo. 335, nothing more appears than the fact of possession, the possession itself will be regarded as sufficient evidence of a claim of title, and the statute of limitations will apply. But if qualifying circumstances are shown — as, first, if the party in possession disclaim title in himself; or, secondly, if he has in any manner admitted the title of the true owner; or, thirdly, his title as claimed be void on its face; or, fourthly, it be obtained by fraud — in all these and like cases the actual possession is not regarded as adverse, and will not furnish the foundation of a legal title. (See Angelí on Lim. chap. ,31, sec. 11; Adams’ Eject. 455 et seq.') It would be absurd to allow the defendant to set up a claim of title, in a court of justice, to land in which the law of the state declared no such title could exist.
    Gantt, for defendant in error.
    I. The first point made by counsel for plaintiff in error is untenable. It appears that at a certain period the town of Carondelet existed. How come that court to recognize that existence at all ? Was the act that gave it being before the court ? If so, the court knew by that act that its corporate life dated back as far as August, 1832. If not, the court could only know of its corporate existence by means of taking judicial notice of the act of incorporation. It is altogether fatal to the plaintiff’s case tbat there was no evidence of such incorporation before the court below; for, if so, plaintiff could have had no title to the land under Caron-delet.
    II. It was not necessary that a survey should be made of the commons before the statute of limitation could commence running against Carondelet. This point was made in the case of Chouquette v. Barada, 28 Mo. 331, and in a very pointed manner disregarded by the court. It is to no purpose that we inquire respecting the rules for the regulation of common under the civil law.
   Scott, Judge,

delivered the opinion of the court.

This cause is made to turn on the statute of limitations. An admission was made on the trial that the defendant, and those under whom he claims, had had the continuous possession of the land in dispute from the year 1825. We conceive that this admission was intended to give the defendant the benefit of such a defence, and as at the trial no point was made on the necessity of proving the time of the incorporating of Carondelet, it would operate as a surprise on the defendant to take advantage here of his failure to make such proof.

It was maintained for the plaintiff that the town of Carondelet was not barred by the statute of limitations, because her commons were not surveyed until the 29th of July, 1834, and, until that was done, the plaintiff’s title attached to no particular land, nor could a court of justice ascertain its boundaries. We do not consider that the doctrine of the case of West v. Cochran, 17 How. 416, is applicable to confirmations made by the act of June 13, 1812. It has always been understood that that act, by its terms, passed a perfect title to the confirmee, and, upon proof of his inhabitation, cultivation or possession of the lot sued for prior to the 20th of December, 1803, and the continued existence of his claim until the passage of the act, he was entitled to recover. If the land inhabited, cultivated or possessed could be identified as the land claimed and sued for, to the satisfaction of the jury, by any evidence written or verbal, the plaintiff was entitled to recover without any evidence of a survey made by the officers of the federal government or any one else. The case of Guitard v. Motard, 16 How. 507, holds that such a title passed by the act of 1812, as could not be affected in any way by a subsequent act of Congress passed May 26, 1824. Confirmations until the act of 1807 did not pass absolute titles from the United States. After the confirmation the ultimate title was still in the government, and until the land confirmed wa§ surveyed and patented (when a survey was necessaiy) no perfect title to any land or any particular tract of land was conveyed to the confirmee. It appertained to. the United States executive officers to designate and set apart the land confirmed to the claimant; and until this was done it could not be said that he was entitled to any particular part of the earth’s surface. This we understand to be the doctrine of the case of West v. Cochran, and we do not conceive that it is applicable to the case of a complete title emanating from the United States by a legislative grant. Indeed we consider the language of the court in that case as maintaining this view — language so plain that it can not be misconceived. On page 415 the court says : “ It was competent for congress to take up these titles or rights, and act on them either by legislating directly that each claimant should be confirmed and have a perfect title to his actual possession, lawfully acquired under France or Spain, without ascertaining in the act of confirmation, or by any special means provided therein, the bounds of claims confirmed. But it was also competent for congress to provide that, before a title should be given to any possessor, the exact limits of his possession and the title which the United States was to give should be defined, and that this should be done by such agencies and in such manner as might be fixed by congress.” The court here evidently has in contemplation confirmations under tlie two acts of 1812 and 1807, and contrasted the effect of such confirmations. This is made plain by what is said on the succeeding page, where it is remarked that congress might have said, as was done in the case of the St. Louis town lots and out-lots by the act of 1812, that each man should own what he lawfully possessed under the former government; and, if congress had done so, then the question would have been in this instance a matter of fact to be tried by a jxxry as to what the plaintiff did formerly possess and consequently own. Although the preceding remark in its language is confined to “ town lots and out-lots,” yet it is obvious that they were used as examples or illustrations and with no view to limit the act to such lots, as its terms and the reason of it would apply as well to the commons as to any other private property enumerated in it.

Another point made by the plaintiff is, that the statute of limitations did not begin to run against the corporation until it was vested with the power of disposing of the land, which was not conferred until March, 1851; that this want of a power of disposal in the corporation placed the lands out of commerce, and by the principles of the civil and Spanish law things out of commerce could not be prescribed for. We do not regard the doctrine of the Spanish or of the civil law in relation to the imprescriptibility of things out of commerce as having any application in this state since the introduction of the common law, whatever may have been its influence anterior to that event, a matter about which it is not now necessary to express an opinion. Angelí, in his work on highways, says, that the doctrine of the earlier cases, that there can be no loss of the public right by mere non-user, has to some extent been departed from in more modern decisions. (Angell on Highways, 310.) We do not see any difference between the commons owned by the town and lands owned by any other corporation in trust for a special purpose. The principle is not apparent which secures the land in one case more than the other from the operation of the statute. It is not seen how the vesting of the legal title to land in a body natural or corporate, without the power of alienation, can protect it from the operation of the statute. The distinction in this respect between an individual and a corporation is scarcely discernible. The statute of limitations is a statute of repose, and extends to all the lands in the state the title to which has passed from the United States. The test of the applicability of the statute is the incapacity of the defendant to sue, and not the existence or non-existence of his right of disposal. The statute of limitations now in force would seem to bind the state. But if the state was not bound by the statute, that principle would not extend to lands held by corporations under no disability to sue. In the case of McPherson v. Carondelet, 20 Mo. 192, and the City of Carondelet v. The City of St. Louis, 25 Mo. 462, it was held that the City of Carondelet could maintain an action on her title to commons without a survey.

The act of 22d December, 1824, concerning commons (R. C. 1825), gave the trustees or body corporate of any town authority to prosecute for all trespass committed on the commons belonging to the town. The act was continued in force by the revised code of 1835. (See R. C. 1835, tit. Laws.)

In the examination of this controversy we have not overlooked the principle of the case of Menard’s heirs v. Massey, 8 How. -, which maintains that a confirmation by act of congress, which passes a perfect title, may be of so indefinite a character, as to description, as not to prevail against a subsequent sale of land which may be included in a survey of the confirmation made after such sale.

The other judges concurring, the judgment is affirmed.


author: Richardson, Judge,

text:
    City of Carondelet, Plaintiff in Error, v. Lannan et al., Defendants in Error.
    1. Under the act of December 22, 1824, (R. C. 1825, p. 211,) as well as under-the act of February 6, 1839, (Sess. Acts, 1839, p. 210,) the trustees of the-town of Carondelet had power to make leases of the common of the town;, they might under said act, in accordance with a town ordinance to that effect, make leases containing a clause of forfeiture for nonpayment of rent reserved; such forfeiture, when declared in proper form, could not he relieved against, although no demand of rent had been previously made. (Taylor v. Carondelet, 22 Mo. 105, affirmed.)

      Error to St. Louis Land Court.

    This was an action in the nature of an action of ejectment to recover possession of a lot in Carondelet common, that had been leased by the town of Carondelet in the year 1888. It is claimed by Carondelet that there was a forfeiture of the lease. The defendants set up in their answer that the lot in controversy had been leased by the town of Carondelet in the year 1838 to one Joseph Yient (under whom defendants claim) for the term of ninety-nine years; that the rent was duly paid until March 14, 1851, when, by accident, the tenant omitted to pay the rent due on that day, no demand having been made for the same ; that on July 10,1852, the lessor declared the lease forfeited for nonpayment of said rent, but never reentered nor took possession of the premises, nor demanded possession thereof until the commencement of this suit; that afterwards, to-wit, some time in the year 1852, so soon as the tenant was advised that the rent was in arrear and unpaid, a tender was made to the lessor of the whole amount of the rent in arrear and unpaid; that said lessor refused to receive the same. Defendants prayed that plaintiffs might be decreed to receive said tender in full satisfaction and discharge of said arrearages; that defendants might be decreed to be entitled to the possession of the premises sued for as against plaintiff; and that they might be relieved against said forfeiture.
    The plaintiff replied to this answer. To this replication there was a demurrer. The court sustained the demurrer, and set aside the forfeiture. The circumstances under which this forfeiture was declared are sufficiently set forth in the .opinion of the court.
    Casselberry, for plaintiff in error.
    I. The case is substantially the same as the cases of Wood-son y. Skinner, 22 Mo. 13 ; and Taylor v. Carondelet, 22 Mo. 105. The board of trustees had as full power before as after the act of 1839 to pass ordinances authorizing the leasing of their commons and of adding penalties and forfeitures.

      N. Holmes, for defendant in error.
    I. This case does not come within the principle of Taylor y. Carondelet, 22 Mo. 105. That case turned on the special provisions of the act of February 6, 1839, and the force of an ordinance passed in pursuance thereof in 1845, under which the lease in that case was made. This lease was made before that act was passed, by virtue of the general powers of the corporation, as an incorporated town, incorporated by an order of the county court, in 1832, under the act of 1825 (R. C. 1825, p. 764). The acts of 1825 and 1835 did not constitute the board of trustees a miniature general assembly and give them special “ legislative powers on the subject of leases” as the act of 1839 did, as held by this court in Taylor v. Carondelet. The ordinance of March 3, 1838, authorizing the board of trustees to lease the commons in the name of the corporation, merely directed them so to make the leases that they could “ annul” them and “ reenter” for nonpayment in six months; and accordingly a stipulation to that effect was inserted in the lease as a part of the contract. It is, in effect, no more than the ordinary clause of forfeiture in a lease between private individuals. In such cases as this the coui'ts grant relief. (2 Sto. Eq. § 1315, 1316, 1323 and note 3 ; 1 Spence Eq. Jur. 630 ; 2 White & Tud. L. C. 460 ; Bowser v. Colby, 1 Hare, 128 ; 1 Eden on Injunctions, 44; 2 Platt on Leases, 475-482 ; Taylor, Landlord and Tenant, § 495.)
   Richardson, Judge,

delivered the opinion of the court.

We do not see how this case can be distinguished on principle from Taylor v. Carondelet, 22 Mo. 105. In 1839 the general assembly authorized the trustees of the town of Carondelet to grant leases of the common belonging to the town, and invested them with all the power necessary to carry into effect the objects of the act. (Sess. Acts, 1839, p. 210, § 2, 6.) On the 12th day of July, 1845, the trustees passed an ordinance directing that the lots in survey No. 8 should be leased, and required that the leases should contain a provision to the effect that should the rent reserved in any lease or any part thereof remain unpaid for six months after the same became due, the board of trustees might by resolution declare the lease terminated and void, and the same shall expire and be determined from that day. The lease under which Taylor claimed was made under this ordinance, and contained a stipulation that if at any time the rent for six whole months should be in arrear and unpaid, the trustees of the town might terminate the lease by an order or resolution to be entered on record among the acts and proceedings of the board. The court held .that “ the corporation, in its political capacity, having required the insertion of the clause of forfeiture, it is as though it had been done by the legislature,” and that the forfeiture, being incurred under the provisions of a law, could not be relieved against in equity.

We do not propose to review this case nor to discuss the reasoning or authorities that support it, and it is therefore sufficient for us to say that it has been decided, and in our opinion is decisive of the case at bar. So far as the act of 1839 delegated to the corporation of Carondelet any of the legislative powers of the general assembly, it has accomplished by the second section, which simply empowered the trustees to grant leases of the common; for the sixth section, which declared that the board of trustees should possess all the power and authority necessary to carry into effect the objects of the act, and to do all acts that might be proper for that purpose, was unnecessary and did not enlarge the power previously granted; because the grant of power in the second section carried with it by implication the right to employ the necessary means to give it.

The act of 1824 concerning common, which was continued in force by the revised laws of 1835, enacted that when any city, town or village had a common annexed to it, the trustees or a body corporate of such city, town or village might lease the same or any part thereof, reserving a yearly rent. (R. C. 1825, p. 211.) This law is quite as potential and delegated as much of the power of the state to the trustees of Carondelet as was conferred by the act of 1839. Under the authority of this law the trustees of Carondelet passed an ordinance on the third day of March, 1838, which directed that the common south of the river Des Peres should be leased for the term of ninety-nine years, and provided that should the rent or any part or portion thereof remain unpaid six months after the time at which the same shall become due, the board of trustees may annul the lease and reenter upon the property leased, without molestation or hindrance on the part of the lessee.” Pursuant to the provisions of this ordinance the land in controversy was leased by the trustees of the town to Joseph Vient, on the 24th March, 1838, and it was stipulated in the lease that if at any time the annual rent reserved should be in arrear and unpaid for six months, the lessors, or their successors in office, might declare the lease forfeited by order or resolution entered on record among the acts and proceedings of the board, and might enter and take possession of the demised premises free from any claim of the delinquent lessee or his assigns.

It appears that the annual rent that became due on the 14th March, 1851, was in arrear and unpaid for more than six months, and for that reason a resolution was passed on the 10th day of July, 1852, by the city council of the city of Carondelet (being the successors to the board of trustees), and entered on the record among the acts and proceedings of the council, which declared the lease forfeited.

The stipulations in the lease in this case, and in Taylor’s case, and the provisions of the ordinances of 1838 and 1845 under which they were respectively made, and the proceedings of the city council to annul the leases, are substantially the same in every particular ; and the only possible distinction that can be taken between the cases is in relation to the acts of 1829 and 1838, and these acts, in our opinion, confer the same general powers, and are not unlike in any respect material to the questions in this case.

The judgment will be reversed and remanded;

the other judges concurring.


text:
    Huth’s Administrator, Defendant in Error, v. City of Carondelet, Plaintiff in Error.
    1. Taylor v. Carondelet, 22 Mo. 105, affirmed.

      Error to St. Louis Land Cowrt.

    This was a proceeding to set aside a forfeiture of a lease executed in favor of plaintiff’s intestate, in April, 1846, by the board of trustees of the town of Carondelet. It appears from the finding that Huth (plaintiff’s intestate) died in the year 1849 ; that he paid the rent during his life; that Du Bouffay Eremon, public administrator, took charge of his estate on the 22d day of June, 1850 ; that he paid to the authorized agent and collector of the board of trustees the rent up to April 4, 1850; that July 10, 1852, the city of Carondelet passed an ordinance annulling said lease for nonpayment of rent reserved which had remained unpaid for more than six months after the same became due; that Eremon was ever ready to pay said rent; that no demand was made, but that Thomas Cliartrand, the duly authorized agent of the board of trustees for the collection of the rent accruing on the lease for the year ending April 4th, 1851, agreed with Eremon and promised to call on him and receive the said rent for the said year when the same should become due and payable; that said Chartrand failed to do so, and by reason thereof the said rent was not paid; that in the latter part of the year 1852 said Eremon tendered to defendant all the rent that had then accrued for the years ending April 4,1851, and April 4,1852, together with interest to the time of the tender.
    The court set aside the forfeiture.
    Casselberry, for plaintiff in error.
    I. The agent had no power to make the agreement in evidence. There was no authority to extend the time. The city council never knew that he had made any arrangement of the kind until long after the lease had been forfeited.
    Whittelsey, for defendant in error.
    I. Equity will relieve of forfeiture on the ground of accident. (2 White & Jud. L. C. 464; 3 Yes. 693 ; T. & R. 434; 1 Hare, 128.) The defendant is but a corporation, and the provisions of its lease, although required by ordinance, are but contracts and covenants of the parties, as between landlord and tenant. (Major v. Bailey, 2 Denio,, 443 ; Grant on Corp. 129.) The rule that equity can not relieve against a statute does not apply to this case.
   Richardson, Judge,

delivered the opinion of the court.

The lease in this case was made under the same law and ordinance, and is precisely similar in all its provisions to the lease in the case of Taylor v. Carondelet, 22 Mo. 105; and we do not see how this judgment can be affirmed consistently with the opinion in that case.

The circumstance that the collector of Carondelet promised the plaintiff to call upon him for the annual rent and failed to do so, presents a case of hardship which is more properly addressed to the corporate authorities in considering an application to have the resolution declaring the forfeiture rescinded than to the court. It was the plaintiff’s duty to pay the rent without a demand, and it is his misfortune that he relied on the collector’s promise. He acted, no doubt, on assurances that would have misled the most prudent man; but the agent was a mere ministerial officer, and it does not appear that he had any power to grant indulgence or to relieve the plaintiff from the consequences of his own negligence or that of any other person. If a collector of the public revenue should promise a person to extend the time for the payment of his taxes, and not to return him a delinquent, but from forgetfulness or any other cause should report the taxes unpaid, which would result in the advertisement or sale of the property for taxes, it would not be thought that the owner could obtain any relief in the courts ; and we do not discover the principle in equity by which the plaintiff in this case can be relieved against a forfeiture which has been held to be the work of a statute.

All the judges concurring, the judgment will be reversed.


author: Napton, Judge,

text:
    St. Louis Public Schools, Plaintiff in Error, v. City of St. Louis, Defendant in Error.
    1. The real estate belonging to the board of public schools of tlife city of St. Louis is liable to be assessed, under and by virtue of ordinances of the city of St. Louis, for the-construction of sewers, paving of side-walks, opening streets, &c. (Lockwood v. City of St. Louis, 24 Mo. 20, affirmed.)

      Error to St. Louis Land Court.

    Demurrer to a petition. The plaintiffs are the board of president and directors of the St. Louis Public Schools. The petition is as follows: “ Plaintiffs state that they own and hold block No. 107 in the city of St. Louis, fronting on streets on every side thereof, and divers lots of ground in the city of St. Louis, and state of Missouri, all of which have not been disposed of to individuals by sale or lease, and all of which were granted by the United States, for the support of schools in said city, by the acts of congress of June 13, 1812, May 26, 1824, and January 27,1831, respectively ; and that they also own, hold and use, at this time and for several years heretofore, divers school-houses, and other buildings in said city, for the purposes of education, with their furniture and equipments and tbe land appurtenant thereto and used therewith. The defendant, through its officers and agents, duly authorized by the ordinances of said city, are proceeding to assess and collect local special taxes on and from said property, respectively, to pay the expenses of opening divers streets, of paving divers side-walks along said streets, and of constructing divers sewers in said streets, in the same manner as property belonging to private individuals is assessed and collected for the purposes aforesaid. Each piece of said property is assessed and taxed separately to pay for the opening of the street adjoining the same, and for paving the side-walks thereof, and for constructing the sewer in each street. The said taxation is not for general revenue purposes, but is local and only on such portions of said property, respectively, as is near or contiguous to any street to be opened or in which a sewer is to be constructed. The plaintiffs contend that said property is exempt from taxation for any of the aforesaid purposes by the second section of the first article of the act of the legislature of this state, entitled An act to provide for levying, assessing and collecting the revenue,’ approved December 13, 1855. The plaintiffs therefore ask this court for judgment against the defendant, forever enjoining and prohibiting said defendant from assessing or collecting any part thereof for the purposes aforesaid, or for any other purposes whatever; and the plaintiffs also ask for such other and further and general relief in the premises as they may be lawfully entitled to.”
    The court sustained a demurrer to this petition.

      Casselberry, for plaintiffs in error.
    1. The principle of the case of Lockwood v. City of St. Louis is not applicable to this case. That case turned on the fact as to whether the improvements to be made were local or general. The property held by the St. Louis Public Schools is owned by the people of the whole city. The school corporation represents precisely the same people that the city corporation does. One is created for police purposes and tbe other for educational purposes. If the school property is benefitted by the improvement, let the city pay for it out of the general treasury belonging to the people of the whole city, and by this means the school property belonging to the whole population will be benefitted and the expense of assessing and collecting from the school board would be entirely avoided. The legislature never intended that the whole people should be burdened with the expense of levying, assessing and collecting a local tax of this kind on their own property. It is like an individual taking money out of one of his pockets and putting it into another. The school property of the city should be exempt from all kinds of taxation, whether local, general, special or otherwise. (R. 0. 1845, p. 1822, sec. 2.)
    Bay, (city counsellor,) for defendant in error.
    I. The tax imposed upon the schools was a special local tax, imposed for the purpose of paving side-walks, constructing sewers, &c., &c., and the exemption of the second section of the revenue act (R. 0. 1855, p. 1323) has no application to a tax of this kind. (See Lockwood v. City of St. Louis, 24 Mo. 20; 11 Johns. 77 ; 13 Penn. 107 ; 3 Wend. 263.)
   Napton, Judge,

delivered the opinion of the court.

We have not been able to distinguish this case from the case of Lockwood, 24 Mo. 20. It has been suggested that the two corporations concerned in this suit — the City of St. Louis and the St. Louis Public Schools — are identical in interest, being composed of the same constituents, and therefore the local assessment levied and collected on the property of the Public Schools by the city authorities is merely transferring the burthen of the improvement from one branch of the treasury to another. But although the citizens of St. Louis may be alike interested in both corporations, the management of each is distinct, invested in different bodies differently organized and governed by different rules and responsibilities. It is important to the interest of the people composing each corporation that these separate responsibilities should not be removed. The result of the contrary doctrine would be that every ordinance for paving a street, or making a sewer in a district of the city in which the Public Schools had property, would be virtually to tax the citizens of the district for an increase in the funds of the Public Schools, when it may be that this latter corporation has already ample means for its purposes.

The judgment of the land court is affirmed,

the other judges concurring.


text:
    Lambert et al., Plaintiffs in Error, v. Blumenthal et al., Defendants in Error.
    1. Where one is in possession of land asserting an exclusive title thereto, an action for partition can not he maintained against him by one out of possession who claims a common title thereto ; the claimant must first establish his title in an action of ejectment.

      Error to St. Louis Land Court.

    This was an action for partition. Plaintiffs assert title to a portion of the premises in controversy under Lambert Sallé, dit Lajoye. Blumenthal, one of defendants, in his answer, denied the title of plaintiffs ; alleged that neither plaintiff nor his co-defendant had ever been in possession of premises in controversy ; that he had been in possession adverse to the world since the year 1847.
    It appeared in evidence that the defendant Blumenthal had been in the actual possession of the premises for eight or nine years before the commencement of this suit, claiming title to the whole. Blumenthal claimed title under John B. Sarpy.
    At the close of the plaintiffs’ case, defendant Blumenthal asked the court to give the following instruction: “ The court instructs the jury that if they find the plaintiffs and the co-defendant of Blumenthal have never been in the actual occupancy of the premises in dispute, and that Blumenthal and Sarpy have had the exclusive, actual, visible possession of the premises for about fifteen years, claiming the same as their exclusive property, then the plaintiffs are not entitled to recover in this action of partition.” The court refused to give this instruction.
    The defendant then introduced evidence tending to show an outstanding title to the premises in the state of Missouri. The court, at the instance of defendant Blumenthal, gave the jury the following instruction: “ If the jury find from the evidence that the judgment in favor of the state of Missouri, the transcript of the record of which is given in evidence by defendant, was rendered, and upon execution issued therein the interest of Lambert Lajoye in the land in question was during his lifetime sold by the sheriff of St. Louis and conveyed by deed given in evidence by defendant to the state of Missouri, and that said deed was executed as it purports to bo, and that there is an outstanding title to the premises in dispute conveyed by said sheriff’s deed still remaining in the state of Missouri, then the jury are instructed that the plaintiffs are not entitled to recover.”
    Certain instructions asked by plaintiffs were refused. Plaintiffs took a nonsuit, with leave to move to set the same aside.

      S. A. Holmes and Romyn, for plaintiffs in error.

      Dick, for defendant in error.
    I. There was no title before the court. Plaintiffs never had any title ; never were in actual possession. There could be no presumption of possesssion, there being no title. Lambert Lajoye did not die seized of a valid title. The judgment and sheriff’s sale conveyed all his title. Sarpy was in exclusive possession fifteen years ago. He sold it in fee in 1847 to defendant, Blumenthal, who took absolute exclusive possession, and immediately asserted openly his exclusive claim to ownership by erecting his family residence. Upon these facts there is no principle of law which constitutes plaintiffs and defendants tenants in common. (4 Watts & Serg. 251; 1 id. 184 ; 9 Cow. 561.) Unless there was a tenancy in common the action is not authorized by the statute.
   Scott, Judge,

delivered the opinion of the court.

This case presents the question whether a tenant in common and of posssession can have a writ of partition against one in possession holding adversely to him.

If this question were made to depend on the ancient English law, there would seem to be but little doubt respecting it. Coke says: “ This word (tenet) in a writ doth always imply a tenant of the freehold. * * * If one coparcener disseize another, during this disseizin a writ of partition doth not lie between them, for that non tenent insimul et pro indiviso.” (Co. Litt. 167 a.) Baron Comyns is to the same effect. (5 Com. Dig. 225.) Viner says, the word tenet in a writ always implies a tenant of the free hold, and therefore if one parcener be disseized by the other no writ of partition lies. (16 Viner, 225.) This principle has been recognized in many of the American courts. In the case of Adams v. Ames Iron Co. 24 Conn. 230, the court says, it was an established rule of the common law, by which the writ of partition would be only between coparceners, that the plaintiff must be in possession or seized of the land when the writ was brought; and, since the remedy by partition has been extended to joint tenants and tenants in common, the same rule has been uniformly adopted, whether the remedy is sought by writ or bill in equity. In the case of Law v. Patterson, 1 Watts & Serg. 185, it was determined that an adverse holding by one tenant in common for any length of time, however short, previously to the institution of an action of partition, will bar a recovery in such form of action. The case of Clapp v. Bromagham, 9 Cowen, 560, is full on this question, and deserves the more attention because it is founded on a statute bearing a close resemblance to our own. The statute to which allusion is made is that which was in force prior to the last revision of the New York statutes. (R. C. 1813, p. 507.) In that case it was insisted that the entry of one tenant in common was no disseizin of his cotenants. The court answered the argument with the language of the supreme court of the United States in Ricord v. Williams, 7 Wheat. 50, that in general the entry of one heir will enure to the benefit of all; and that if the entry is made as heir and without claim of an exclusive title, it will be deemed an entry not adverse to, but in consonance with, the rights of the other heirs; but it is clear that one heir may disseize his co-heirs and hold an adverse possession against them, as well as a stranger ; and that, notwithstanding an entry as heir, he may afterwards, by disseizin of his co-heirs, acquire an exclusive possession on which the statute will run; that an ouster or disseizin is not to be presumed from the mere fact of sole possession, but that it may be proved by such possession, accompanied with a notorious claim of an exclusive right. The same case in New York determined that, in a proceeding for partition, the plaintiff must allege that he is seized, and show a present actual possession ; and that a mere right of entry will not satisfy the averment; and that a subsisting adverse possession of the defendant, though short of twenty years, is a bar. (Burnhams v. Burnhams, 2 Barb. 408.)

We do not conceive that the rule above stated extends to lands unoccupied, where there is only that possession in law which is connected with the title to land. There could be no adverse possession under the circumstances, and those having the legal title would in law be seized of the land in such sense that they would be entitled to the process of partition. But where one is in the adverse possession of land, claiming it exclusively against all others, one claiming title and out of possession can not maintain a suit for partition. He must first try his right in an action of ejectment, and after that is established he may institute his proceedings for partition. The practice of making a suit in partition the form of trying an action of ejectment is frequently productive of great expense and delay ; jumbles and confuses matters that ought to be kept separate and distinct in order to a proper determination of them; and often causes great embarrassment in the proceedings.

The provision in the seventeenth section of the act concerning partition, that where there are parties claiming the same portion adversely to each other, the court may decide upon such adverse claims, does not affect this question. This provision was intended to meet difficulties that might arise during the progress of the suit. The plaintiff might bring in persons as defendants claiming the same interest; or one may have had himself made a party under the eleventh section of the act; in such cases, in order to obtain the ends proposed by the proceeding, the determination of such questions becomes necessary.

The effect of this opinion is to end this proceeding and to put the plaintiffs to their action of ejectment. The point was not made, and no opinion is given on the question whether, under all the circumstances of the case, a deed from the state to Sallé, the ancestor, may not be presumed from the length of time. As the plaintiffs are standing on a nonsuit; as their petition does not allege that they hold jointly with the defendant; and as, according to this opinion, it is clear that they can not recover in this form of action, the judgment will be affirmed ;

the other judges concur.