97 Mo. 457 | Mo. | 1888
This is an appeal from the decree of the circuit court of Buchanan county enjoining the defendant from entering upon, or interfering with plaintiff’s several railroad tracks as now constructed and operated on, over and across Fourth street in the city of St. Joseph.
The defendant, at the time of the filing of the petition, was engaged in constructing its track on Fourth street, was approaching the tracks of plaintiff, and purposed crossing them, claiming the right to do so by virtue of an ordinance of the city of St. Joseph duly passed and approved January 7, 1887, granting it “the privilege of laying down, constructing, using and maintaining forever along Fourth street a single railroad track from the south line of Sacramento street to the north line of Lafayette street.”
The accompanying map or diagram represents the relative situation of the grounds of the contestants, the tracks of plaintiff as established and operated, and the points of their crossing by the proposed track of the defendant, the plaintiff’s tracks are in yellow, and the defendant’s in red.
It will be observed from the map, that the defendant proposes to cross six of the plaintiff’s tracks on Fourth street, that at the points of crossing, the plaintiff is the owner of the property abutting said street on each' side thereof. Prior to September, 1878, the plaintiff was the absolute owner also of the strip, of ground between its said abutting premises designated on the map as Fourth street, with its several tracks as located thereon, and was operating the said several tracks in its business as a common carrier of passengers and freight in connection with its tracks on its adjoining property of which the street then formed a part. At the September term, 1878, of the circuit court of Buchanan county, in a pro ceeding instituted by the city of St. Joseph against the
“The City of St. Joseph vs. The Kansas City, St. Joseph & Council Bluffs Railroad Company. Appeal.— This case is submitted to the court without the intervention of a jury, and by agreement of the parties the court assesses the damages to defendant, for and on account of the matters alleged in plaintiff’s petition herein, at one dollar. It is therefore considered by the court that defendant recover of plaintiff one dollar, and its costs before the mayor in the condemnation proceedings, and the plaintiff recover .of defendant all costs of the appeal. And it is ordered, adjudged and decreed that the right of way through the lands of defendant for the extension of Fourth street, as prayed in said petition, be, and hereby is vested in the plaintiff, said right of way being bounded as follows ” : (Here follows a description of the ground of plaintiff embraced within said street including the land at the crossing in controversy) and then proceeds: “ Said defendant shall have the right to keep, and maintain its present tracks and switches upon said lands, and shall have the right to construct such other tracks, switches and turnouts upon said land and across said street, when opened, as it may deem necessary for the transaction of its business, subject to such grades as may be established by the city upon said street.”
The plaintiff, since the rendition of the foregoing decree, has continued to use and operate these tracks across Fourth street the same as before. The ground before and since the extension of said street through it is denominated by the witnesses the “middle yard” and is used as a freight distributing, yard, in addition to its use as a roadway for plaintiff’s trains both passenger and freight. Its use and how that use will be
W. F. Daily testified that he was yardmaster in charge of plaintiff’s St. Joseph yards, and as such had charge of their operation ; that plaintiff has two freight depots west of Fourth street, and north of the point shown on the map, one at the foot of Third street and one at the foot of Second street, two or three hundred feet apart; that the middle yard lies between Mitchell avenue and Lafayette streets, north and south ; that the north track in the middle yard leads to'the gas-house for loading and unloading their cars; the next track is a team-track ; the next a transfer-track, used for making transfers to and from the Hannibal and St. Joseph Railroad; the next, the main-line passenger track to the Union depot; the next two, team-tracks for loading and unloading cars with teams ; that the next track leads to the Badger Lumber Company’s yards, used for loading and unloading cars, and for storing transfers ; then there are two spurs running into the other yard ; also, that there is a main-line passenger track leading to the round-house, used for specials, and to go to the Consolidated Tank Line Company and the Anheuser-Busch Brewing Company, also used for storing cars. Then comes a freight-track, used for freight trains going to and coming from the round-house, and for switching purposes ; also a track for storing transfers, and doing work for the Barber Asphalt Company. W est of Fourth street there are tracks leading to the El ectric Light Works and two tracks west of same, used for unloading and storing cars. That these constitute the tracks of the middle yard. All trains of plaintiff pass through this’ middle yard on some of the tracks named. The regular trains consist of twelve passenger and twelve freight trains; that all freight trains on plaintiff ’s road are
The witness further testified:
“Q. Supposing, Mr. Daily, that this (the ground shaded red on the map ) represents the yard of the St. Joseph Terminal Company as it is to be built on this ground between Lafayette street and Pattee street; state to the court the effect which the operation of the yard would have, if any, upon the operation of the middle yard of defendant’s road? A. Well if this Terminal Company’s yard was worked to its full capacity as it is shown on the map it would • damage this (plaintiff’s) middle yard, one-half if not more, the damage would, be caused by impeding and delaying its trains in crossing Fourth street.”
A register of the time the Fourth street crossings were occupied by plaintiff’s trains, kept for six days, August 17-28, Í887, showed that its trains were on the crossing on an average some- indefinite time during thirteen and a half hours out of every twenty-four.
Besides the condemnation proceeding in which the foregoing decree was rendered, another suit had been instituted by the city of St. Joseph against the plaintiff in said circuit court, and on the trial in this case the defendant offered to prove that a suit lor $90,000 was brought by the city against the Kansas City, St. Joseph
By the constitution and laws of this state, railways are public highways, and railroad companies common carriers thereon, and every railroad company has the right to construct and operate its road between any points in this state and with its road to intersect, connect with, and cross any other railroad (Const., art. 12, secs. 13, 14; R. S. 1879, sec. 819); and to construct its road across, along or upon any street with the assent of the corporate authorities of the city in which such street is situate. R. S. 1879, sec. 765. The exercise of these rights is, however, subject to the limitation in the constitution, “ that private property shall not be taken or damaged without compensation, and such compensation must be ascertained and paid to the owner, or into court for the owner, before the property shall be disturbed, or the proprietary rights of the owner therein divested.” Const., art. 2, sec. 21. The manner in which such compensation is to be ascertained is prescribed in the fifth paragraph of section 765, R. S. 1879, where one railroad company proposes to cross with its track at any point in its route the track of another railroad company, on the grounds of such railroad company, and the two corporations cannot agree on the amount of such compensation, or the points and manner of such crossing. Where one railroad crosses another in a public street, private property is not necessarily taken,
So far as we are advised,. no law has yet been enacted by the legislature' prescribing the manner in which the amount of compensation shall be ascertained and paid to the owner of private property damaged, but not appropriated to a public use. The. constitutional provision being prohibitive, however, of such damage until the amount of compensation shall be ascertained by a jury, or a board of commissioners, and paid to the owner or into court for the owner, must be held to be self-enforcing, and a court of equity would enjoin one who proposes continuously to damage private property for a public use without having first made compensation to the owner, at least, until such court has caused, by a board of commissioners or jury, as is contemplated by the constitution, the amount of such compensation to be ascertained and paid to the owner, or brought into court for him.
In this case the defendant company in its answer thus states its purposes: “That at the time of the 'filing of the petition herein, this defendant was constructing, and intending to construct its said railroad, along and upon said street, upon the grade of said street, in a careful manner, so as not to interrupt or interfere with travel thereon, and in so constructing its said road intended, when it should become necessary, to build and construct the same across plaintiff’s tracks, on said street, by placing therein the most modern frogs and appliances for such crossings, of such construction that the same would not interfere with, injure, or in any manner affect the operation or maintenance of plaintiff’s said tracks.” The general question to be
As to the first of these rights, it may be said, if, by virtue of that decree, Fourth street, as located across the plaintiff’s property, became a public street in the usual and ordinary acceptation of the term, and as used in the statute, then the plaintiff’s easement therein as abutting proprietor can in no way be damaged by the construction of defendant’s road, since during its construction it is not proposed to disturb plaintiff ’ s ' pass-way, and afterwards it will have the same free and unobstructed use of the street as it had before, by the same vehicles drawn upon the same tracks ; and every one that desires will have the same unobstructed ingress to, and egress from the plaintiff’s abutting premises that they had before. The only damages that can be conceived of, or
This brings us to the consideration of the particular and controlling question in the case, and that is, has the plaintiff company, by virtue of the decree entered in the condemnation proceedings, a private property in that part of Fourth street which runs through its premises, other than the fee in the soil, and the tracks which are located thereon; upon which we have seen the defendant company proposes to impose only such servitude as they are subject to in a public street, which would be damaged by the operation of the defendant’s proposed railroad tracks. In other words, has the plaintiff a right of pass-way in that street private and peculiar to itself, not shared by the general public ? If so, then it has private property that may be damaged by
It must be conceded that the clause in the decree dedicating or condemning the ground to public use is as broad and comprehensive as if the proceeding had culminated in such a judgment, and that the reservation from public use of a private right of way across said
Eeading the decree then to this end, what is a fair construction of its terms 1 After condemning the right of way for the extension of Fourth street through the lands of the plaintiff as prayed for in the petition, the decree provides that the plaintiff “shall have the right to keep and maintain its present tracks and switches upon said lands, and shall have the right to construct such other tracks, switches and turnouts upon said land and across said street, when opened, as it may deem necessary for the transaction of its business.” The right secured to- the plaintiff by these terms to keep and maintain its present tracks, and to lay others if ..necessary for the transaction of its business, and to run its trains on such tracks in the prosecution of its business on or across that part of Fourth street described in the decree after the same shall have been opened for public use, is entirely consistent with the use of such street as a public highway by the general public, or by any other railroad company to whom the city authorities might grant permission to lay its tracks on or across said street. There is not a word or expression in the decree
It is clear, we think, that the plaintiff has no right of pass-way either along or across Fourth street that is private property ; that as to such right of pass-way it stands in exactly the same situation as the defendant does, or any other railroad company would which obtains permission from the city authorities to lay down its tracks.in that street. As the defendant company has under the law, and the ordinance of the city, the right to lay down its tracks on Fourth street, and to cross the tracks of the plaintiff, first having made compensation for any private property belonging to plaintiff that it may be necessary to take or damage in so doing, and it appearing that no private property of the plaintiff will be appropriated or damaged by the defendant in the construction of its railway in said street, in the manner in which they propose to construct it or by the operation of its trains thereon, and that the only damage plaintiff can necessarily suffer by reason of the construction and operation by the defendant of its tracks in said street, will result solely from the occupation by the defendant at times for its passing trains, of a space in said public highway, needed at the same time by plaintiff for its passing trains, a damage not private, but common to all the public who may have occasion to use the street, occasioned by a public service to which said
The judgment of the circuit court is therefore reversed and the cause remanded with directions to the circuit court to dismiss the bill.