143 Mo. App. 641 | Mo. Ct. App. | 1910
The city council of St. Joseph by an ordinance in due form, authorized the defendants, as receivers of the defendant railway company, to build a track along an alley for a distance of four blocks. The plaintiffs are some of the owners of property abutting on the alley and by bill of injunction sought to restrain the construction of such work until the damages alleged to have accrued to them be first paid. The trial court,
In determining this case it is not necessary to say Avhether the work done by defendants and proposed to be done by them in laying and establishing a railway track in the alley upon which the complainants’ property abuts, will damage them in a legal sense. The question is, is it unlawful to construct such track before first proceeding to have the damages assessed and paid? If this were a taking of property, undoubtedly defendants could be prevented from taking it until the damages for the taking, were first ascertained and paid in the mode required by law. But this is not the taking of plaintiffs’ property. There is no right of eminent domain being exercised against them or either of them. Defendants are merely seeking to do-that with public property (the alley) ' which, it is said, will injure or damage plaintiffs’ private property. If it does, they will be liable to an action for such damages, but it is no ground for injunction. The question was recently decided by the Supreme Court in Clemens v. Insurance Co., 184 Mo. 46, after a thorough examination, as evidenced by an opinion by Judge Gaintt, of such clear and comprehensive character as to leave nothing fur
