18 Mo. App. 555 | Mo. Ct. App. | 1885
Opinion by
1. The plaintiff complains of the action of the circuit court in refusing the declarations of law, numbered three and four, asked by him. If they were abstractly correct they should have been given, because there was sufficient evidence to support them. " Wherever the railroad company may lawfully fence, that section (section 2124 of Revised Statutes) applies.” Wymore v. R. R. Co., 79 Mo. 249 ; Edwards v. R. R. Co., 66 Mo. 571.
The only question presented for our consideration under this point is, whether the defendant or its lessor, the Hannibal & St. Joseph Railroad Company, might have lawfully fenced the railroad between Jewell and Leonard streets. This question, we think, has been answered in the affirmative by the supreme court in the case of Wymore v. R. R. Co., supra. The trial court thought differently, basing its opinion, no doubt, upon the fact that in that case the land, through which the railroad rán, was not laid off into lots and blocks, while in this case the land, through which the railroad runs, is as above stated. But as we understand that case, it is based, not upon that fact, but upon the fact that no streets were opened or established through the railroad right of way, across the track, for the distance in proof in that case. This understanding' of ours is strengthened by the quotation, in the opinion in that case, of the following language used by Judge Bliss in the case of Ellis
It follows, necessarily, from those cases, that where the railroad operated by defendant was not crossed by a street or alley for the distance of 1200 feet, it might lawfully have been fenced, within the limits of the town of Liberty, at that place; and that the court should have given the declarations of law, numbered three and four, asked by plaintiff, in connection with number five, given for him.
2. The only evidence to sustain those declarations of law, numbered three and four, asked by plaintiff, was contained in the map of the town of Liberty.
The plaintiff’s abstract of the record contains the declarations of law, given and refused, and all the admitted facts and evidence in the case, except the said map, to which reference, only, is made. A copy of the map is not in the plaintiff ’ s -abstract. The failure of the abstract to contain such a copy of the map, where the
We do not consider such failure a violation of the rules of this court. Had the facts, shown by the map, been evidenced by oral testimony, it would have been necessary for the abstract to contain such evidence, or sufficient excerpts from it, to support said declarations of law. But the map introduced in evidence, as shown by the copy of it attached to the record, was a lithograph map, and on account of the impossibility to reproduce the map except at great expense, we think the reference contained in the abstract to the page of the record on which the map may be found is a sufficient compliance with the rules. Especially as the map filed with the record is much more satisfactory than any copy other than an exact and expensive copy.
The judgment of the circuit court is reversed and the cause is remanded for further proceedings in conformity herewith.