3 Mo. App. 315 | Mo. Ct. App. | 1877
delivered the opinion of the court.
This was a proceeding to enjoin and restrain the city of St. Louis, the mayor, and the city engineer from tearing up a railroad track on Poplar Street, between Ninth Street and the Levee, in St. Louis, and from interfering with the use of the track by respondent for the purpose of its business as a railroad corporation carrying freight and passengers for hire.
It appears from the pleadings and evidence that the Pacific Railroad Company, in 1849, under a charter from the State, began constructing a railroad-track, from a point in the city of St. Louis a few hundred feet west of Seventh Street, to Franklin, west. The depot and terminus of the road was on the west side of Seventh Street, and remained at that point until July, 1870. On April 9, 1870, the Pacific Railroad Company petitioned the City Council of St. Louis for permission to extend its track eastwardly along Poplar Street to the Levee, so as to connect with the track of the North Missouri Railroad at that point, and have access to the grain elevator and the river. It asked that this privilege be granted to it on these conditions : that the
In July, 1873, the City Council of St. Louis, by ordinance, declared the use and occupation of Poplar Street by respondent, and the track on that street, a public nuisance, and forbade its use, and required respondent to take it up, failing which, the ordinance directs its removal by the city engineer, under the direction of the mayor. In obedience to this ordinance the city engineer, by direction of the mayor, tore up the track, which was at once relaid by respondent; and on August 13, 1873, respondent instituted this suit.
It is claimed by respondent that the extension of the road from Ninth Street east was not made under ordinance 7329, which granted, respondent says, no privileges, but was a simple recognition, on the part of the city, of the rights of respondent derived from legislative enactments independent of the ordinance.
There was evidence tending to show that the track along Poplar Street destroyed the use of the street for any purpose of business. There was also evidence tending to show that the track was badly constructed and badly kept, and that trains passed over it at all hours at a dangerous rate of speed; that its use was a constant source of danger, and rendered the houses on Poplar Street unsafe and untenantable by the concussion. There was also evidence tending to show that the track was well laid and well kept, and the trains carefully run, with proper watch at the crossings. It was shown that Poplar Street was twenty-one feet wide from curb to curb; that the width of a locomotive-engine or of
The act of Congress of July 27, 1866, incorporating plaintiff, the act of the General Assembly of the State of Missouri of March 12, 1849, incorporating the Pacific Railroad Company, and the acts amendatory of and supplementary thereto, of March 1, 1851, and of February 24, 1853, were offered in evidence, as were many other private acts, and some documentary evidence. These, so far as may be necessary, will be set out or referred to in the course of this opinion.
There was an interlocutory decree for plaintiff, granting the prayer of the petition, with this modification, that in the use of its track it should not interfere with the enforcement of any lawful police regulation of the city. On final hearing the injunction was made perpetual. The defendants appeal to this court.
The right and duty of a municipal corporation, and especially of the city of St. Louis, to control the use of the public streets within its limits, to remove obstructions, and to protect the general public in its right to use the streets for the ordinary purposes of travel and commerce without unnecessary difficulty or danger cannot be called in question. In the absence of a license from some power authorized to grant it, no person has the right to lay down or maintain any railroad-track over any public highway, and if such a track is laid down or maintained by any individual or any corporation, without authority, it is the diity of the city to remove it and restore the street to the ordinary purposes of commerce. It was for the plaintiff, therefore, to show a clear right to ihaintain and operate this track at the date of the alleged trespass complained of in this action, and if it has failed to do so it was not entitled to judgment.
A highway is the property of the people, not of a particular district, but of the whole State, who, constituting as
Eesulting from the power over streets which is universally granted to them in their charters, and to protect the safety of citizens and their property, municipal corporations, in the absence of legislative restrictions, may control the mode of propelling cars within their limits, may entirely prohibit the use of steam-tractors, and may regulate the rates of speed. Dill, on Mun. Corp., sec. 565; 5 Hill, 209.
The policy of this State was sufficiently declared nearly twenty-five years ago by an act of the General Assembly expressly prohibiting the use of steam as a means of locomotion on the streets of any city, without permission from the local authorities (Acts 1853, p. 185, sec. 28, par. 5) ; and, in 1865, a provision was inserted in the Constitution that “ the General Assembly shall not pass any special law granting to any individual or corporation the right to lay down railroad-tracks in the streets of any city or town ; ’ ’ and, in 1875, a similar provision was adopted as part of the organic law of the State, the Constitution then adopted containing a clause that “no law shall be passed by the General Assembly granting the right to construct or operate a street railroad within any city, town, or village, or on any public highway, without first obtaining the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad, and the franchises so granted shall not be transferred without similar assent first obtained.” Const. 1865, art. 4, sec. 27; Const. 1875, art 12, sec. 20.
Now, let us grant for a moment two propositions that are strenuously contested by the appellant: first, that the Pacific Railroad Company had a right to maintain and operate a track, during the year 1872, from Seventh Street east to the Levee, and thence to the elevator; and, second, that plaintiff was the lessee of the Pacific Railroad Company.
The constitutional provisions on .this subject we have already set forth. They were not in force at the date of the original charter of the Pacific Railroad Company, nor at the date of the first amendment to the charter, under which last alone it can pretend to any right to enter the city ; although a similar legislative enactment, as we have said, was passed by the General Assembly very shortly after the charter of the Pacific road was granted. Rev. Stat. 1855, p. 426, sec. 29 ; Acts 1853, p. 185.
The Pacific Railroad Company was incorporated by an act approved March 12, 1849, which authorizes (sec. 7) the construction of the road “ from the city of St. Louis to the city of Jefferson, thence to the western line of Yan-Buren County, with the view that the same may be hereafter continued west to the Pacific Ocean.” It is held that a location of a road ‘ ‘ from ’ ’ a city does not give leave to enter it. Northeastern R. R. Co. v. Payne, 8 Rich. 177. Section 7 provides that ‘ ‘ said company may build said road along or across any county road, or the streets or wharves of any town or city.” This plainly means any town or city which the road is authorized to enter, or through which it may pass. Section 12 provides that the building of the road shall be commenced within seven years and completed within ten years thereafter.
An amended act was, however, passed on March 1,. 1851, and this gives the right to enter St. Louis and pass through it from east to west. It says (sec. 9) thatthe-road may be built “from the Mississippi River, or any point in the city of St. Louis, and may construct lateral or branch railroads to a point or points not exceeding fifty miles from the main line.”
The Pacific Railroad Company having chosen the point in St. Louis at which it would commence, having fixed its depot at Seventh Street and laid its track west from that point,
In support of the view that the Pacific Railroad Company could build this track under the branching power in its amended charter of incorporation we are referred to the case of The State ex rel. v. St. Louis, Kansas City & Northern Railroad Company, recently determined by this court. But an examination of that case will show that the right of the St. Louis, Kansas City & Northern Railroad Company to reach the Union Depot was put, not upon any right to build lateral roads, but upon the declared policy of the State in establishing a Union Depot.
The North Missouri Railroad Company, whose franchises the defendant in that case had acquired, was chartered on
It is expressly said by this court in that opinion, on a precisely similar state of facts (for the North Missouri road had, as in the case at bar, a franchise to pass over the streets of the city, granted before the organic law required the city’s consent), that the State, having established the Union Depot in St. Louis on the pledge that it expected to use it, having declared the policy of the State that all roads should center there, had, by the strongest and most necessary implication, given the necessary means to the end, and cleared away all obstacles ; that it could not, however, commit a trespass to do this ; that the streets of a populous city were in the way, and the consent of the city necessary. “ Indeed,” says the learned judge who recently adorned this bench, and who delivered the opinion of the court, “ it is plain that, if the
It was contended in that case that the road could adopt no route to the Union Depot which did not pass through the Biddle Street terminus. It was conceded on all sides that it could not lay its new track on a street of the city without express permission, since the law of 1853 and the Constitution of 1865.
We are, however, told that the Pacific road could build and maintain this road under the act of the General Assembly of February 15, 1864, entitled “ An act for the convenient delivery of railroad freight in the city of St. Louis,” which authorizes the Missouri, Iron Mountain, and Pacific Railroad Companies to connect their lines one with another, and to lay switches to unload freight to the elevator, and for these purposes to lay a track on the Levee, and to condemn a right of way to the Levee, on condition that their tracks shall be passable for vehicles and always convenient for the passage of carriages, and shall not impede the street. But this act, so far as it conflicts with the Constitution of 1865, was repealed by it. The road on Poplar Street was not constructed under it. The Pacific Railroad Company never accepted its provisions. On the contrary, the company applied to the city for a license, and constructed this track and used it for two years under a license from the city; and then applied for a renewal of the license, which it had no sooner obtained, by means of an ordinance passed at its special request, than it goes through the ceremony of tearing up a few feet of its track, declines the license it had petitioned for, stops its cars for a week or two, and then denies the title of its licensor, claims that it has disclaimed, and treats its licensor of a few days before as a trespasser for entering into the possession of the property which it says it had given up to her.
Our attention is especially called to the act of March, 1869. Acts 1869, p. 74. But that law, if it could give any power to maintain a track without the consent of the city — which, for reasons given, it plainly could not — would not be in point, since it refers only to corporations created under the general statutes of 1865.
What has been said disposes of this case and makes it entirely unnecessary to inquire into the question as to whether or not the Pacific Railroad Company did, or could, legally convey its franchises to plaintiff. If the Pacific Railroad Company had no title to the track, and was a mere trespasser, it could convey no title to the plaintiff, for it had none to convey.
It is said, in the brief of counsel for respondent, that the question as to the authority of the Pacific Railroad Company to construct and maintain this track is res adjudícala, having been passed upon by the Circuit Court in the proceeding commenced by the city in March, 1872, against the Pacific Railroad Company, to restrain it from operating this track. But it appears from the record that that cause was dismissed before final judgment. It, therefore, determined nothing, and concluded nobody.
We have given to this cause that careful attention which the importance of the principles involved and the magnitude of the interests at stake seem to demand. That the road should be compelled to ask and obtain permission of the city to run to the Levee may seem hard ; but that a city of nearly half a million inhabitants should be cut in two in its very center, from its river-front to its western limits, by a railroad, over which cars are being drawn by steam at all
We think, therefore, that the judgment of the Circuit Court should be reversed and the injunction dissolved, and it is so ordered.