Foudry v. St. Louis, Iron Mountain & Southern Railroad, 130 Mo. App. 104

Foudry v. St. Louis, Iron Mountain & Southern Railroad

130 Mo. App. 104 | Mo. Ct. App. | 1908

GOODE, J.

(after stating the facts). — The rules of law applicable to a case of this kind have been ex*112pounded in a series of decisions extending from Lackland v. Railroad, 31 Mo. 180, to De Geofroy v. Railroad, 179 Mo. 698, 79 S. W. 386. According to those decisions a railway company, acting under a license from the proper authority, may lay its track along the established grade of a public street and operate trains thereon, without becoming liable in damages to the owners of abutting property, unless the damage is occasioned by lack of reasonable care and skill in doing the work. The theory of the courts is that such a use of the street by a railway company, instead of diverting the thoroughfare from the purpose to which it was dedicated, realizes said purpose; that is to say, enhances the use of the street by the public as a place for travel and transportation. From' this theory has been deduced the conclusion that abutting property owners, acquire and improve their property with knowledge that sometime a railroad may be operated along the street, perchance .diminishing the value and enjoyment of their property, and hence are not entitled to damages; as they would be if the street was devoted to a new servitude foreign to the purpose for which it was dedicated. Whatever may be thought of the justice of this doctrine, it is established law in Missouri, but is subject to certain qualifications; and of these two are invoked by plaintiff against the right of defendants to maintain the track in controversy. A railway in a street is unlawful if it-prevents the use of the street for traffic and travel or shuts off access to private property. [Sherlock v. Railroad, 142 Mo. 172, 182, 43 S. W. 629.] In deciding . cases like this one, the point of difficulty arises not on the law, but on the facts, and is met in striving to ascertain whether the track so obstructs the street as to hinder the public from using it (Dubach v. Railroad, 89 Mo. 482, 488) or obstructs the approach along the street to private property more than is allowable; such access being, in itself, a property right. [Gauss & Sons* *113Mfg. Co. v. Railroad, 113 Mo. 308, 315, 20 S. W. 658.] In general when either of these Avrongs results from the laying and operation of a.proposed track, the railway company may be enjoined; though perhaps a case of interference with the right of access' to an abutting lot might occur, in which, on a consideration of all the circumstances, a court of equity would refuse the injunction and leave the aggrieved party to an action for damages. As the proper solution of this controversy depends on a correct conclusion regarding the effect of the construction of the new track on plaintiff’s approach to her lot from the rear and on the public use of the street, vre have attended chiefly to the evidence, waiving tlie question of the sufficiency of -the petition, which is challenged by defendants. Counsel for defendants attach much importance to the circumstance that the Iron Mountain Company purchased the ground in the rear of plaintiff’s lot and made a street of it. But we think this fact affords defendants no greater right in law or equity to appropriate the street after its dedication, or to impair its usefulness to plaintiff, than they would have if some one else had dedicated it. Hence we reject the reasoning by which counsel for defendants attempt to raise an equity for their clients on the fact that one of them gave the street to the city. Though there is some conflict in the testimony, in the main, it supports the finding of the court below that the plaintiff is not deprived by the track in question of an approach to her lot, nor the public ousted from such a use of the street as, considering the character of the improvements along it, would be made if there were no tracks on it. It appears that after the Iron Mountain Company laid its tracks; it graded and macadamized Commercial street and for the first time made it fit for horses and vehicles. The trial court found the improvements put in by said company made travel on *114the .street convenient and might have found they made it possible. As to the facility of approach to plaintiff’s lot, it appears that before the Iron Mountain Company opened the street, she could only get to her barn by driving across private lots contiguous to hers. She had no rear access then, but now can drive into Commercial street from Harrison on the west, and thence along the south side of Commercial on a strip nine feet wide, lying between the south rail of the new switch and her barn. Not only has the street been graded and macadamized, but at this point a crossing composed of oak boards twelve feet long and four inches thick, has been laid by the Iron Mountain Company, over which plaintiff can drive. Beside the strip south of the switch, she can use the open space eighteen feet wide opposite her barn and widening from that point to Harrison street between the switch and- the main track of the Iron Mountain Gompany. It is true a switch stand has been placed in this space west of the line of plaintiff’s lot,' but the testimony shows there is ample room to drive around this obstacle. We are inclined to defer largely to the findings of the lower court, as a perusal of the record has yielded an impression they are correct. Therefore we accept the view that plaintiff’s access to the rear of her lot is not so obstructed by the switch as to entitle her to an injunction against its construction.

The other question of fact relates to how much travel is obstructed by the railway tracks, and in examining the record' with reference to this matter, we have been left in uncertainty as to which of the three tracks lie in Commercial street. The petition says there are three tracks in the street opposite plaintiff’s property; but the testimony is unequivocal that one of these, called the “passing track,” the north one of the three, is built entirely on private property and not in the street; and the civil engineer of the Iron Moun*115tain Company, wbo is familiar with the situation of the tracks, swore the main track was also on private property at a point opposite plaintiff’s lot. If his testimony is true, and we have found none directly contradicting it, the new switch is the only track built in Commercial street opposite plaintiff’s lot. Whatever the truth may he about this matter, the weight of evidence conduces to prove the laying of the switch will not exclude teams and vehicles. We conclude from the testimony and the. photographs of different parts of the street* that practically the only use made of it heretofore was for hauling, not for travel in vehicles. Except that no buildings face it, it presents the usual appearance of a street on which railway tracks are laid, such as may be seen around freight depots in many towns. Wagons can be driven over it to and from the depots and to the rear of lots, but it has not been and will not be used for general driving. When several trains are passing at the same time, a team might be delayed; but this would occur too rarely to constitute a.monopoly of the street by defendants and justify an injunction. Stress is laid on the fact that there is a ditch or excavation in the street to the eastward of plaintiff’s property, and it is insisted this ditch and the tracks will practically prevent travel. Both the witnesses and the photographs show the ditch is. shallow. It can be filled easily and whatever obstruction it offers to vehicles relieved.

No precedent we have found attempts to define exactly what degree of hindrance to travel and traffic on a street must be caused by railway tracks, to amount to an exclusion of the public and justify an injunction. The courts declare a street cannot be monopolized by raihvay companies, or its primary use as a thoroughfare or passageway destroyed. But what measure of obstruction will bring a particular case within the force of the rule thus expressed, is nowhere stated. The *116most that can be done in a given case, is to consider the impediment offered to the nse of the street by the track in controversy, with reference to impediments held to be permissible or unlawful in precedents wherein injunctions were granted or refused. As said in a previous decision, comparisons must be instituted. [Morie v. Transit Co., 116 Mo. App. 12, 28, 91 S. W. 962.] The customary travel and traffic over the street in question, the population and volume of business in the city, and the proximity and convenience of other streets, are facts to be considered. What would be an unreasonable obstruction by railway tracks in a great metropolis, because of the consequent congestion of traffic, might be trivial in a small town; or a track in a busy street might be an intolerable nuisance when it would occasion but slight inconvenience in another quarter of the town. The environment is to be remembered. Annoyances incident to railway tracks and trains are expected, and hence are more patiently tolerated, on streets around freight depots and in districts of a city where heavy traffic is carried on, than in residence districts. We do not understand that in order for tracks in a public street to amount to a monopoly, of the street by a railway company and an exclusion of the public from it, they must render passage by teams and vehicles impossible; and' neither do we understand that a considerable hindrance to travel and traffic, if these can go on, though with some inconvenience, will be treated as unlawful in every instance. But the tracks must not so far engross a street that the public will forego the use of it rather than encounter the danger and difficulty of using it. Perhaps the matter cannot be expressed better than by saying, as was said, in effect, in Sherlock v. Railroad; Knapp, Stout Co. v. Railroad, supra, and Lockwood v. Railroad, 122 Mo. 86, 26 S. W. 698, that while the populace must submit to reasonable inconvenience from such obstructions, *117they will not be permitted to go to the extent of destroying or unreasonably interfering with the street as a place of locomotion. On the whole, they ought to enhance, rather than lessen its usefulness as such. We have compared the facts before us with those in the cases counsel have cited, and think the court below observed the spirit and principle of those decisions in finding plaintiff was not deprived by the track in question of access to her lot, or the easement of the public in Commercial street destroyed or unreasonably impaired. The decisions we have examined, besides those already cited, are the following, to which the reader is referred for light on the general question: Porter v. Railroad, 33 Mo. 128; Rude v. St. Louis, 93 Mo. 408, 6 S. W. 257; Schopp v. St. Louis, 117 Mo. 131, 22 S. W. 898; Spencer v. Railroad, 120 Mo. 154, 23 S. W. 126; Christian v. St. Louis, 127 Mo. 189, 29 S. W. 996; Schulenberg v. Railroad, 129 Mo. 455, 31 S. W. 796; Corby v. Id., 150 Mo. 457, 52 S. W. 282; Ruckert v. Id., 163 Mo. 260, 63 S. W. 814; Nagel v. Id., 167 Mo. 89, 66 S. W. 1090, and Heer D. G. Co. v. Citizens Railway Co., 41 Mo. App. 63.

We find in Tate v. Railroad, 64 Mo. 149, and Sherlock v. Railroad, supra, remarks that streets cannot be used for side tracks and the like structures. We have been puzzled to know what the Supreme Court means by these observations, for in other cases the right to construct side tracks and switches under a permission from the municipality, has been sustained. [Brown v. Railroad, supra.] We have found no case in which the point in decision was that a railroad company had no right to lay a switch track in the street merely because any track of that sort would be an unlawful obstruction; no decision in which such an obstruction was held to be a nuisance per se; but we do find decisions treating switches in a street as lawful when they do not too greatly hinder its use by the public. This *118point bad not been made or insisted on, and really there is no necessity for alluding to it, but we have been embarrassed by those dicta.

Our conclusion is that the essential question in all such cases, be the track a main line or a switch, is whether or not it will unreasonably obstruct the street.

The findings of fact by the court below were unnecessarily broad, and might hereafter stand in the way of an action by plaintiff for damages founded on negligence or other dereliction of the company. It was enough to hold she had shown no case for injunctive relief against the construction and operation of the proposed switch, and to dismiss her bill and give final judgment for defendants. To this extent the judgmént is affirmed.

All concur.