In their motion for rehearing appellants challenge our opinion for two reasons. [8] First, while acknowledging our ruling that Morrill v. Wabash, St. L. Pac. Ry. Co., 96 Mo. 174, 9 S.W. 657, did not hold Robert Forsyth's deed in 1871 conveyed a base fee on a condition subsequent, yet they insist we overlooked their further contention that the then heirs and devisees of Robert Forsyth brought the Morrill suit on the theory that it did, and thereby made that theory "the law of the title to the strip of land in suit" and bound the present heirs and descendants of Robert Forsyth, as well as the mesne grantees of the abutting land down to date.
Appellants base this assertion on two grounds. One is that the plaintiff heirs and devisees of Forsyth brought the Morrill action in ejectment jointly, which they could not and would not have done unless they had believed the Forsyth deed conveyed a base fee on a condition subsequent; and were claiming the whole strip as reversioners after breach of that condition. If they had been of the contrary view, say appellants, that the deed only conveyed an easement, subject to which Robert Forsyth retained the title, there would have been no reason for his heirs to join as plaintiffs, for in the meantime Forsyth had died leaving a will in which he had divided the servient land into separate parcels and devised them severally to his children. On the easement theory the heirs and devisees could not have sued jointly, but the owners of each parcel would have been compelled to bring a separate action for the part of the strip carved out of it. In other words, there was a misjoinder of parties and causes of action if the deed conveyed only an easement. The other ground for appellants' first contention is the statement in the opinion in the Morrill case discloses that the agreed statement of facts therein recited Forsyth's deed "conveyed the strip of land in question, it being a part of a *Page 826 large tract, . . . for a right of way." Appellants say this shows it was the theory of the plaintiffs in the ejectment suit that the deed conveyed the land itself, not merely a right of way over the land.
We are unable to find where appellants made these points in their brief here. In their motion for rehearing they cite us to several pages of the brief, but these appear merely to refer to the theory of the decision, not to the theory of the parties to the case. And whatever the latter may have been, we are unable to see how it would be controlling after the court had spoken. Perhaps appellants mean the decision ought to be interpreted in the light of the trial theory of the parties, and that we have erred in our construction of the opinion.
With that thought in mind we have inspected the original record in the Morrill case on file here. Nowhere in it is there any claim that the Forsyth deed conveyed a base or qualified fee on a condition subsequent. The brief here for the plaintiffs-appellants in the old case refers to it as a grant ofright of way on conditions subsequent. One of plaintiff's refused instructions set out in the brief declares the deed from Forsyth "simply grants the right of way through his lands." The fact that the plaintiffs there claimed the grant was on conditions subsequent, and that the Morrill decision used the same or equivalent language, signified nothing as regards the extent and nature of the interest conveyed subject to those conditions. One of the cases cited in the Morrill brief was Baker v. C., R.I. P. Rd. Co., 57 Mo. 265, 269, 271, where the landowner executed a mere relinquishment of right of way. That decision held it was a mere license on a condition subsequent. In other words a condition subsequent can be annexed to an estate less than a fee — even to a license, or to an easement as we pointed out in the principal opinion.
Other points might be mentioned. For instance, if the plaintiffs in the Morrill case believed Robert Forsyth's deed left in him only a mere possibility of reverter, which was not devisable, and that on a supposed breach of the conditions subsequent the title had settled down on his heirs at the time, why did they join his devisees as parties plaintiff? What appellants say about the will in their motion does not touch that question. They say Robert Forsyth's will is "entirely silent as to whether or not any intention existed either to include or exclude" the right of way strip conveyed by his previous deed. But they assume, it seems to us, that his intention was to leave it out, which would mean he recognized he then had only a mere nondevisable possibility of reverter, thereby conforming to their theory of the law. However, the will devised each parcel without excepting the right of way strip, which he well might have done if he meant to devise the land subject to a railroad easement (see Kellogg v. Malin, 50 Mo. 496, 499); and again we ask, if the plaintiffs in the Morrill suit believed the will meant to leave out the right of way strip, why were the devisees thereunder included as parties plaintiff? *Page 827
[9] The other ground for rehearing mentioned in the motion is that in the instant condemnation suit the agreed damages to be paid for the right of way strip are $10,000, but that the defendant railroad company is awarded nearly all of it, the aggregate awards to the abutting owners being only $110, with no objection on their part. Appellants say this indicates they think their interest is merely nominal; and that if the railroad company has only an easement which it has practically abandoned, it would be unconscionable to give it nearly all the money. Those questions are not involved on this appeal. In the construction of the Forsyth deed we must be governed by what it says, allowing something to extrinsic aids to construction, insofar as the deed may appear to be ambiguous. As indicated in the principal opinion we think it is clear. And we find nothing in the Morrill case pointing to a different conclusion, except that there may have been a misjoinder of parties and causes of action. But the point was not raised.
The motion for rehearing is overruled.
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