Thornton v. Missouri Pacific Railway Co.

Defendant assigns but three errors in this court upon which it asks a reversal:

(1) “ The court erred in admitting evidence as to anticipated damages, caused by the noise made by trains passing the church, frightening horses, etc. Such inconvenience is no ground for damages.”

(2) “The court erred in giving, to the jury respondents’ fourth instruction, and refusing instruction numbered four, prayed by appellant.”

(8) “Philip Leininger conveyed to the defendant railway company a right of way, one hundred feet wide, through his land, for the consideration of two hundred dollars. He had previously granted three-fourths of an acre ‘ within and surrounding said church.’ As between these parties, the court erred in permitting parol evidence, as to the intention of the grantor to convey to the church the land which is embraced in the right of way.”

As to the first objection, it is sufficient to say that the evidence was admitted by the trial court without objection from defendant, and it cannot now be heard to complain. Objections of this nature cannot be made for the first time in this court.

As to the second objection, the court gave for plaintiff the following instruction:

“4. Although the jury may believe that the deed offered in evidence by the plaintiff from O. Q. Lewis and others to James Thornton and others, as trustees of *270the United Baptist Church of Zoar, does not definitely and properly describe the premises ^mentioned in the petition, yet, if they further believe from the evidence, that the said deed was made by the grantors therein named, with the intention and understanding that they were thereby conveying the premises mentioned in the petition to said trustees therein named, for the use and benefit of the said United Baptist Church of Zoar for church purposes, and that said church and its trustees received said deed believing that it conveyed to them said premises, and that under and by virtue of said deed the said church society and its trustees took possession of said premises, and have ever since that time, to-wit, June 18, 1867, held possession of said premises, and now have possession of the same, and have heretofore and now do hold and use said premises for church purposes, and that the church society, mentioned in the petition, is the same church society mentioned in' said deed, although with different names, and that plaintiffs are the duly appointed trustees of said church society, then plaintiffs are entitled to recover all damages (if any) done to said church property by reason of defendant’s railroad running over or through any part of the same ; if said road was run over said property, without condemnation proceedings, and without the consent of the plaintiffs, not exceeding the sum of two thousand dollars.”

Under the evidence in the cause there was no error in this instruction. Notwithstanding the indefiniteness of the description in the deed, the testimony showed without contradiction that the church had the property in constant possession and use, claiming title thereto for more than ten years prior to defendant’s trespass. This, of itself, would give title to the church upon which this action could be maintained. That portion of the lot which is termed the open space or common was fenced on three sides, the public road being the boundary on the fourth side, and there had been erected *271within this partial inclosnre hitching racks and stiles, for the' convenience of those attending services in the church. These were used in connection with the church. When it is remembered that the congregation making use of these premises was from the surrounding country to a distance of eight miles, and came on horseback, in wagons and carriages, it can readily be seen that this ground was almost indispensable to the use of the church property. We are of the opinion that this character of use and possession for a continuous period of ten years was sufficient to vest the title, without the aid of the deed. The same can be said in answer to the objection to,admitting parol evidence of the grantor’s intention. The judgment is affirmed.