273 Mo. 29 | Mo. | 1917
This proceeding was instituted in the circuit court for Marion County on February 15, 1908, by petition under what is now Section 2360, Revised Statutes 1909, to appropriate by condemnation a strip of land in blocks 33 and 50 of the city of Hannibal belonging to defendant, for the purpose of constructing and operating thereon a double-track railway. The strip lies east of and adjoining the right of way of the Hannibal Bridge Company thirty feet wide upon which it operates its tracks, and, in connection with that right of way, does not exceed the width of one hundred feet at its widest part. The petition stated, in substance, that the plaintiff was a
Upon the filing of the petition in vacation commissioners were appointed to assess the damages, and upon the coming in of their report plaintiff: paid to the clerk the amount of their award, and proceeded with the construction of its road, which had been completed and was in operation at the time of the trial.
At the September term, 1908, and on the 29th day of that month, the plaintiff filed a second amended petition of which the object was the condemnation of the same land for the same purpose as in the original petition. The defendants answered, admitting the ownership of the land as charged and denying every other allegation. On the same day the cause was tried to a jury on this petition and answer, and a verdict was returned assessing the damages of the several defendants on account of their respective interests in amounts aggregating seven thousand five hundred dollars. As to this amount no question is made by defendants in their briefs. On the contrary, they say that the very basis of their contention is that “neither the plaintiff nor any of its antecedent corporations ever had any located right of way” whatever over these city blocks. Pursuant to this theory they filed, at the close of all the evidence, a motion which, omitting its title and signature is as follows:
“The defendants move the court to dismiss the proceedings for the reason that the petition does not state facts sufficient to constitute a cause of action and because the evidence in the cause fails to show any right on the part of the plaintiff to condemn the property as prayed in the petition.”
The facts pertinent to the issues so presented are that in June, 1875, the Mississippi Valley & Western Railway Company, a corporation formed by consolidation under the laws of Missouri and Iowa, of an Iowa
On May 17, 1875, the St. Louis, Keokuk & Northwestern Railway Company was incorporated in Iowa “for the purpose of purchasing, constructing, maintaining ánd operating a railroad for public use in the conveyance of persons and property” from Keokuk to St. Louis, a distance of 165 miles. Section 3 of its Articles of Association is as follows: “Said road is to extend from the Keokuk and Hamilton Bridge Company’s bridge at Keokuk, Lee County, Iowa, to the Mississippi River and also the Missouri Pacific Railroad Depot at St. Louis, Missouri, and such other point in the city of St. Louis as the board of directors shall determine. It being intended to purchase the railway of the Mississippi Valley & Western Railway Company, between Keokuk, Iowa, and Dardenne, Missouri, and construct and complete the same to St. Louis, Missouri.”
In August, 1877, it filed in the office of the county clerk a profile map of its line in Marion County. The part pertinent to this case is in evidence and consists of a solid black line drawn from the north, showing the position of the Mississippi Valley & Western track to its point of connection with the “Wabash” track, from which it is continued with a dotted or broken line along the Wabash and Missouri, Kansas & Texas tracks, marked respectively with the names of those companies, to the point of connection of the latter with the new Keokuk & Northwestern track.
In 1878 (December 4th) it made a contract with the Hannibal Bridge Company by which the latter agreed to permit it to continue to operate its trains over the tracks of the Bridge Company formerly used by the Mississippi Valley & Western, in consideration of a rental of $125 per month, under reasonable rules to be prescribed by the Bridge Company, and certain privileges upon the tracks of the St. Louis, Keokuk & Northwestern. This instrument provided that the privilege granted might be revoked by the Bridge Company upon six months’ notice, and that upon such revocation the railway company might proceed to condemn a right of way twenty feet wide off the west side of the Bridge Company’s track to cover the gap left in its line by such revocation. It does not
The plaintiff company acquired the property of the St. Louis, Keokuk & Northwestern Railroad Company by mesne conveyances not necessary to mention, in 1901, and on February 9, 1908, filed a profile map or plat for Marion County, showing the actual survey, location and distance of its road through Marion County, and its contemplated tracks over the land sought to be condemned in this suit, and gave notice to the owners of the various tracts upon which its said tracks were located, including the defendants.
This plat was practically the same in other respects as the plat of the St. Louis, Keokuk & Northwestern plat filed in August, 1877, with the exception that each of the old connections with the bridge track was marked with tlie words and letters “end of St L., K. & N. W. R. ”
The legislative discretion in this respect is limited, to be sure, by that provision of Section 20 of Article 2 of our Constitution which requires that “whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and as such judicially determined without regard to any legislative assertion that the use is public.” That the plaintiff’s railroad, including its construction, maintenance and operation, is a public use within the meaning of this provision is not questioned nor is it open to question. The only question presented is whether the power of eminent domain conferred upon it by statute includes the right to condemn .this land for the purpose stated in the petition. If so, there being no fraud alleged, the necessity for the taking is a question which must be determined by the plaintiff, and not by the court. In considering this, we shall, as we have already intimated, and as we are invited to do by the parties in their briefs, ignore the several transfers made after the acquisition of title to the property by
At the time the Keokuk Company was incorporated and qualified to transact the business of its incorporation in this State, such corporation was authorized “to lay out its road, not exceeding one hundred feet in width, and to construct the same, and for the purpose of cuttings and embankments to take as much more land as may be necessary for the proper construction and security of the road” (G. S. 1865, p. 332, sec. 2, par. 3) and was required (Id., p. 337, sec. 12) before beginning the construction of its road or any part thereof into or through any county named in its articles of association, to make a map and profile of the route intended to be adopted by such company in such county, and to file the same in the office of the county clerk, and to give notice to every person occupying lands over which the route of the road is so designated, and which has not already been acquired by purchase or donation.
It will be noted that this law did not require the filing of any map of the right of way, but only of the route intended to be adopted. By act approved April 24, 1877 (Law 1877, p. 369, sec. 1) the present law (R. S. 1909, sec. 3074) it was specified that the map should show the actual survey, location and distance of the roadbed through each congressional section of the county. We
The statute in force since before the incorporation of the Keokuk Company (R. S. 1909, sec. 3212) provides that if the Eailway Company “shall not finish its road and put it in operation in ten years from the time of filing its articles of association ... its corporate existence and powers shall cease: Provided, that if a portion of its road shall be finished and in operation, it shall continue its corporate existence, with power to hold and manage the portion of its road so constructed, and for no other purpose. ’ ’ The defendants contend that, having failed to construct its road over the three-quarters of a mile covered by the use of the bridge track, the corporate powers of the Keokuk Company, including the right of condemnation, ceased, and it was without a charter covering that portion of its line. This leads necessarily to the consideration of the question whether under the provision of the statute we have just quoted it did “finish its road and put it in operation.” Section 3106, Eevised Statutes 1909, which has been in force since 1866, provides as follows: “All railroad corporations may contract with each other, or with other corporations, in any manner not inconsistent with the scope, object and purpose of their creation and management.” This section is comprehensive and has been comprehensively construed by this court in St. Joseph & St. Louis Railroad Co. v. St. Louis, Iron Mountain & Southern Railway Co., 135 Mo. 173. It includes in its categories all railroad-com panies and all subjects tending towards the carrying out of the purposes of their creation and management. It is frequently of interest to the public that two tracks should not be required where one is entirely sufficient for the
We think that the “profile map” filed by the Keokuk Company in April, 1878, properly and plainly shows the situation as we have stated it. It shows the railroad constructed and to be constructed by that company and also that the gap of three-quarters of a mile was to be connected by the tracks designated as the Toledo, Wabash & Western and the Missouri, Kansas & Texas
V. The real question in this case is raised by the assertion of the defendant that the arrangement with reference to trackage and right of way between the Keokuk Company and the Bridge Company constituted an abandonment by the former of the right to condemn the defendants’ property. In other words it elected to stand forever upon the rights so acquired. As authority for the position, they cite Joplin & Western Railway Co. v. Kansas City, Ft. Scott & Memphis Railroad Co., 135 Mo. 549; Kansas City Interurban Railway Co. v. Davis, 197 Mo. l. c. 676; and Roanoke Investment Co. v. Kansas City & Southeastern Railway Co., 108 Mo. 50. Before proceeding further with the question so presented we will notice these cases. The Joplin case was injunction to prevent defendant from constructing its track over a strip of land twenty-five feet wide adjoining the smelter of the Empire Zinc Company, to be used as a spur to serve that industry. The strip mentioned was all the land lying between that industry and a stxip twenty-five feet wide which' the plaintiff had purchased from the Zinc Company for the same purpose, and upon which it was already constructing its track and had filed its profile map. The defendant contracted with the Zinc Company for a conveyance of the intervening twenty-five feet and immediately took possession and prepared to build its track thereon. Afterward and on the same day plaintiff commenced proceedings to condemn for “main track and side track” the land
Tbe Interurban case is covered by the following paragraph in the syllabus: “The power given to a railroad company to condemn private property for its own use is to be exercised within strict limits. The law does not authorize the incorporating of a company with a roving commission to go anywhere in the State a^d condemn land in spots.” The only question was as to whether a charter authorizing the construction and operation of a road from Kansas City to Pleasant Hill, Missouri, had given the corporation the right to condemn land for the construction and operation of a railroad from a point in Kansas City to Swope Park. This court held that these were two separate propositions, and that it did not have that right. In the Investment Company case, which was injunction, it was held that the right of way had been abandoned and. the road built upon another line.
There is nothing in any of these cases, nor in any other Missouri case that we have been able to find, that supports the point to which they are cited. On the other hand there is much in the text books and in the adjudication in other jurisdictions against it. In Lewis on Eminent Domain (3 Ed.), sec. 403, the rule, with some of the reasons supporting it, is stated as follows: “In the absence of any restriction or limitation, the power to take private property may be exercised by the grantee from time to time as necessity requires. If this were not so, it would be necessary to anticipate all future needs at the outset. The company condemning would thus not only have to take and pay for property in advance, but it might be saddled with property which it would never use at all. On the other hand, either from taking too narrow a view of the future or from the growth of business beyond any reasonable anticipation, it might in a few years find itself unable property to discharge its duties to the public. Accordingly a railroad company, after having located and completed its road, may, as the expansion of- its business
Mr. Nichols, in his excellent work on the same subject-just published, says: “After the railroad has been constructed, land may be taken for additional main tracks, if needed for expeditious public travel.” [P. 189.]
The English case of Ayr Harbour Trustees v. Oswald, 22 English Ruling Cases, 167, 8 App. Cas. 626, is directly in point. In that case, which was for condemnation of lands for roadway and wharves for access to a harbour, it was held in the House of Lords that the trustees of the harbour could not limit the amount of damages by an agreement that it would not erect certain structure that would embarrass the owner’s access to the harbour from his remaining lands. Lord Blackburn, who wrote the opinion, placed the decision on substantially the following grounds: The right to the appropriation depended upon the public use to which the lands were to be appropriated; that their appropriation under an act which made no provision for a restricted use was inconsistent with such limitations and the limitation void. While it is unnecessary for us to express any opinion upon that decision, which goes beyond the region we must traverse in the consideration of the case before us, we cordially approve the doctrine that it is not within the power of a railway corporation to barter away or otherwise surrender the powers granted it for, the benefit of the public, but they must remain ready to exercise them whenever the public interest requires it. They cannot exercise the rights granted them and at the same time repudiate the duties imposed as compensation -for those rights.
Our statute (R. S. 1909, sec. 3049) gives to the railway company the right “to lay out its road, not exceeding one hundred feet in width, and to construct the same; and, for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the road.” No distinction is made in the matter of time
The power with respect to the width of the road not only confers a right upon the public corporation, but imposes upon it the duty to exercise that right whenever the public service requires it. It has been said with what we consider much reason that “a municipal corporation to which the power of eminent domain has been granted cannot lawfully contract that
The judgment of the circuit court is in accord with the principles above stated and it must therefore be and is affirmed.
PER CURIAM: — The foregoing opinion of Brown, 0., is adopted as the opinion ¿f the court.