D. M. Osborne & Co. v. Missouri Pac. Ry. Co.

37 F. 830 | U.S. Circuit Court for the District of Eastern Missouri | 1889

Thayer, J.,

(after stating the facts as aboce.) The first question that presents itself in this case, now that the evidence has been heard, is whether the complainant is entitled to equitable relief, even conceding that the laying of the track in and along Gratiot street did, to some extent, damage complainant’s property within the meaning of the constitution of the state. Article 2, § 21. .It is most likely true, as claimed by complainant’s counsel, that by virtue of section 4, art. 12, Const. Mo., complainant is entitled to have its damages assessed by a jury, and that the court cannot in this proceeding assess the damages sustained, and enter a decree therefor, or make the right of the defendant to further use said track dependent upon its paying to complainant (he sum so assessed. At all events, the court does not feel warranted in exercising powers of the doubtful nature last suggested; therefore, if it grants any relie!', it must be an order of injunction restraining the defendant from using the Gratiot-Street track, until complainant’s damages are duly assessed by a jury in some form of proceeding, and paid. Should the court, under the peculiar circumstances of this case, grant such relief? The testimony no doubt tends to show that the existence of a railroad track in Gratiot street lessens the value of complainant’s property to some extent. Such depreciation in the value of the property seems to be largely due to the fact that the track is not laid for the full distance in the center of the street, but inclines to the north, and cuts the curb line at the west boundary of complainant’s premises. That fact may lessen the value of the unimproved portion of complainant’s lot, and render it less marketable than it would otherwise be. It may also be that the track along Gratiot street slightly interferes with the convenient receipt and delivery of goods at the south entrance of complainant’s building or. said street. There is some testimony before the court to that effect. But the inconvenience resulting from such interference is evidently very slight. I will also add that it is by no means certain that the value of complainant’s property is impaired in the manner above stated. Opinions yro and con were expressed on that point by the various witnesses. A jury, called to try the issue and assess the damages, might reasonably find that no damage lmd been sustained in consequence of the laying of the track, or that the damages wore inconsiderable. The court is of the opinion that the use of the track has not seriously obstructed, and will not in future seriously obstruct, access to complainant’s premises, and that the damage done to its property in the way of lessening its market or rental value is in any event small. The bill in the present case was filed February 1(>, 1887, two days before the approval by the mayor of the city of St. Louis of the ordinance granting the defendant leave to lay the track in question. The track was not laid, as the evidence shows, until March 20, 1887. When work was begun by the defendant on the track, no application was made for an injunction to stay operations for the time being. The (¡ase was not brought to a final hearing until nearly two years had elapsed, to-wit, January 31, 1889. Since the 20th of March, 1887, the track has been used daily, and in the mean time complainant has made no application for a temporary restraining order. If the court should at this late day enter a decree enjoining the use of the track, it would probably put third parties to great inconvenience, who are in a measure dependent upon it either for shipments or for supplies.

As the case stands, I know of no proceeding which the defendant can take to obtain an assessment of the damages, if any, that complainant lias or will sustain by the location and operation of the track in Gratiot street. Complainant, on the other hand, has an adequate and simple remedy by an action at law to recover such damages. As I remarked when this case was before me on demurrer to the answer, (35 Fed. Rep. 84,) the track was laid in pursuance of legislative and municipal authority, and is in no sense a public nuisance. Defendant has a right to use it, on condition, of course, of paying such damages as abutting proprietors may have sustained. Under the circumstances, the court is of the opinion that an injunction ought to be denied, and the complainant remitted to its legal remedy. If it had made a seasonable application for a temporary injunction, when the bill was filed, or whep defendant began to construct the track, the court would undoubtedly have been authorized, on the averments of the bill and the showing now made, to grant such an order; but it does not follow that it ought, for that reason, to grant an'injunction now. Injunctive relief should be applied for seasonably. Even when there are some grounds for such relief, it is in a measure discretionary with the court to grant or withhold it. Bassett v. Manufacturing Co., 47 N. H. 436; Railway Co. v. Smith, 15 N. E. Rep. 256; 2 Wood, Ry. Law, 794; 1 High, Inj. p. 7, § 7. For the reasons thus indicated I shall enter an order directing a dismissal of the bill, without prejudice to complainant’s right to sue at law for the damages which it claims to have suffered.