*1 theory so without on different proceeding action; in de-
and a cause different could of action
termining whether cause petition given
be must stated the be pro- doubt,
benefit of the the writ since forbearance, and
hibition must be used with “However, apparent us if it is not
from our record examination of the whole stated, cause then of action be could respondent, relying failure
the possibility amendment, sug- of such
gest how in what manner amendment
might legal made to state a cause
action would incline the belief that us to
no such cause could be stated.” action
Such language opinion prior of our in the
case should suffice justify the disallow- point
ance of the here made. appellant’s rehearing motions for a
or to Supreme transfer the cause to
Court are overruled.
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Plaintiff-Appellant, FREER, Defendant-Respondent.
V. R.
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Plaintiff-Respondent, FREER, Defendant-Appellant.
V. R.
Nos.
Springfield Appeals. Court of
Missouri.
Dec. Rehearing or to Transfer to the
Motion Supreme Court Overruled
Feb. *2 entering
(1) From trespassing plaintiff’s strip. 100-foot wide *3 possession (2) interfering From ship- strip plaintiff, and use of said its pers consignees.
(3) any installing maintaining From or across, in, upon the barriers fence strip. (4) From manner interfering plain- enjoyment whatsoever with of tiff, shippers its the free consignees, of strip. and unrestricted use of said answered, among things, Defendant other Tex., Denison, Mc- Thie, A. William plaintiff that had removed and abandoned Flanigan, Laurence Reynolds, Flanigan & strip portion the roadbed on the of the Flanigan, Car- H. Flanigan H. and John pos- only involved. that “the He asserted plaintiff. thage, for strip plaintiff sessory right of to said its is to maintain a roadbed and to move Patten, Joplin, for defendant. Max A. trains” and that defendant is restricted using strip only himself extent RUARK, Judge. that he does not with such main- interfere of roadbed and movement of tenance Injunction: Plaintiff railroad sued to re- trains; and he denied interference. such defendant, adjoining of land strain owner By way assert- of counterclaim defendant trespass way, alleged from an right its plaintiff’s rights ed that easement petition alleges such acquired by grant limited to those aof plaintiff that railroad is the owner grantor certain reserved unto the land of 100-foot easement across the wide doing way and on the defendant; of such along the whole acts, building certain related such as strip pole and wire line maintains a trams, shafts, ponds, building et sinking part plaintiff’s rail- integral which is an cetera; plaintiff portion leased a has system; along portion of the road to a business which strip it track for the movement maintains call “Sumners and Moore” to conduct will trains; of its that defendant laid a has profit by private main- business for part strip girder across and is threat- storage plant concrete and the tenance of a ening by girders the installation of materials, portion so leased of chats and prevent plaintiff, shippers fences to its plaintiff had re- being that from which strip consignees, using from for rails; roadbed and Sumners moved its unloading temporary storage ma- occupy such tract now leased and Moore terials carried in the rail- exercise purpose; that such inter- leasing for such Prayer injunction road business. is for possessory rights of de- with the feres prohibit interfering defendant from prays The counterclaim for fendant. any manner with the and unrestricted free plaintiff and its lessees injunction against strip by plaintiff, shippers “except ac- entering from consignees. cording the terms and that en- Upon petition filing aforesaid” the court deed portion temporary leasing injunction joined issued its enjoining person private defendant: injunction alternative, prop- rary or, profit in the performing on said “or from tenance of a roadbed erty any act [*] [*] [*] for the movement except main- new a new trial. Said motions trial. Defendant being filed denied, motion both parties appealed. cars.” de- issue of Trial was commenced on the the defendant case number 7717 temporary fendant’s dissolve the motion to appeal by the complete failed his was, stipula- injunction, hearing but this briefs, filing transcript serving tion, on all transformed into a trial and the accord same is now dismissed in judgment merits. court rendered 1.15, 42 Supreme ance with Rule Court *4 1, 2, tem- paragraphs and on the V.A.M.S. for decision The case para- porary injunction dissolved and were plaintiff’s merits is on case number 7713 graph left in force. This was was appeal. par- satisfactory party, both to either and The Facts new ties filed aside for motion to set or Thereupon trial. order aside the was set extends Defendant tract which owns a hearing. and the for cause was set further The of 667 feet. east-west distance 20, 1958, plaintiff January motion On filed way” this tract or of enters “right permission plead- for reply by to amend its extends, and near the corner northwest ing Joplin city prohibits a ordinance which south, upon across slight a to the curve city limits, mining within the and this was In 1902 the tract. the entire breadth of overruled. Empire Company, defendant’s Zinc title, conveyed predecessor in the chain of 29, 1958, January judgment On ren- Missouri, Northwestern to Kansas and plain- dered wherein the court found that predecessor, plaintiff’s Company, Railroad tiff way; has right a of the easement about to right way “a the railroad of for part still and no of it exists has been aban- piece constructed,” “strip of be belt doned; right that defendant has to fifty a staked each side of land” feet on upon purposes enter tract for mining premises. The considera- line across the designated to do certain things in con- change of loca- tion was one dollar and the ducting operation mining but has no to the north side tion from the south side other or further right to enter plant grantor, then of smelter premises; right use no operated plant “and if shall here- permit right way the use of the of company after at time said any manner which interferes with defend- promptly furnish cars remove shall mining rights. ant’s charge all such cinders thereon free of enjoined The defendant was (during clay party said first refuse material as easement) installing existence from It may desire rid of.” was stated get way fences or barriers on the right of convey surface that the intention was making any use of it which inter- way, only right for a and the plaintiff’s right use way feres with as minerals grantor reserved the under except in exercise of mining his reser- drifts, surface, right to drive build vations. way in such over the tracks trams operation interfere with the rail- enjoined plaintiff was from any use dump ponds, material, road, waste to build way which right interferes with shafts, provided that in so doing sink the defendant to enter and ex- right be not use of the “un- mining rights as his reserved in the ercise necessarily” impaired the rail- grant. recorded “in company the maintenance of its road operation of its modify motion to and the filed roadbed trains.”
Plaintiff restor- provide 1, 2, required to and 4 ing tempo- railroad was paragraphs along does pole of “suitable” maintain the and wire drainage by the construction line cross- way, pole old “reasonable” this line bridges and to build re- used in general communica- ings railroad’s over the tracks. The system. tion limits quired The railroad has continued not to build fences pay premises right way land taxes on all the long as the of way and contends it for or manufactur- should be used for holds future commercial purposes except by grantor. use. ing consent strip of land Finally it was stated that “the Prior this which excited events is to a railroad lawsuit, portion railroad had leased assigns grantor revert to its successors right way, immediately of its de- west of purpose.” if it be abandoned for that Moore, tract, fendant’s who to Sumners and engaged in the business manufac- along this dump A roadbed or was built turing ready-mixed con- For concrete. place a distance At a short refer venience further discussion we will tract east of the west of defendant’s line property to this leased Sand as “Tract A.” built, laid, and the rails trestle was were *5 consigned and concrete-cement are part referred was a what was made at this and Moore and unloaded Sumners into which ran as “the old main line” Unloading Tract A. accom- of sand is line Joplin. this main Sometime later old plished by whereby a method is the sand the “changed,” just but when was as to dumped from the railroad cars into an is It is said the trestle record silent. old pit up brought underneath and from there twenty-five approximately taken was out and loaded into trucks con- means of ago. up railroad took years About 1943the veyor unloading belt. As the means of easterly from the extending all the rails clear, concrete-cement the record is not so (this of 1988 would trestle a distance feet photographic but from the exhibits it would a land and be across most defendant’s overhead, appear conveyed that it is into an therefrom). It considerable distance east and from is loaded into tank there trucks. up feet of is shown who took the The railroad has derived reve- considerable lying west end of old rails between the the shipping nue from and the cars of sand point now trestle and the where the rails consigned to concrete Sumners and Moore end, they appear gone for but to have been place. at this length At approximately the same time. was tried the rails ran in time the case the On leased to the railroad June point ap- ended at a from the west and Sumners Moore what we will refer to proximately of) (east feet inside defend- comprises “Tract B.” as This tract point Beyond that line. and con- ant’s west extending along feet old west, every vestige tinuing old road- (of which feet) crosses the defendant’s there, longer gone. The rails are no is bed contiguous It is not tract. the defend- up or rotted have been taken have the ties line, (already ant’s nor with A west Tract space has been filled away, the old trestle Moore), leased to Sumners and nor with appear by the exhibits in. It would rail the end of the line extends dump itself has railroad been even the tract. It feet into defendant’s is located away, off, into scraped washed eroded originally the old trestle was about where chat, expanse except ground, an nothing (east) built and about 202 feet from de- Thus, summarize, and to and weeds. west line. The lease is terminable fendant’s plaintiff’s tracks situation where have the thirty days’ purpose on notice the west line of and into de- across extend storage.” “material stated to be for premises 29-plus a distance of fendant’s that, and Moore have Beyond and for a number of Sumners commenced feet. any operations this Tract B. not maintained Sand which years, railroad has roadbed; on Tract is trucked at all times is unloaded A down but it has and still portions appellant urges tain “stockpiled” tofo), B. Crushed on Tract locally issue that the lease to purchased and trucked Sumners
limestone is legitimate use. mixing A Moore piled Tract in and on B. also authority B. It has page Tract cited almost a on hopper has constructed been hop- printed has considerable and verbal this devoted mixed and limestone are Sand respondent argument ce- to that issue. where per (just aggregate make shown), brief this issue with considerable met applied is not ment and water in- two imme- argument. Thus we have loaded weighed and the final mix questions off diate carry it to decide: revolving-bowl trucks which job. or construction to the customer (a) Did the defendant have com- operation was Shortly this after place girder girder menced, placed steel the defendant ?; (b) passage toas obstruct the of trucks side the south right angles at across right, did through have point way, near where purpose lessees, to use Tract B for the manner dump ends, in present stockpiling of and limestone sand driving trucks passage as to block customers as mixing it for sale to beyond easterly old down ready-mix to these The answer concrete? dump. act This existing railroad still inquiry questions necessarily into involves in furtherance was not done parties have which both being operation. not now The land is old line Both main period of mined, nor has it been for some have treated this case somewhat time, girder as used nor “waste” declaratory judgment or one action for *6 parties the contemplated to the and title, limit our to determine but we will placed the stated he grant. Defendant present the to of determination the felt land and he girder it was his because without, by may in so far as precipitated right do This he had to so. permanent approval the refusal of injunction suit. the right. injunction, foreclosing future some are not here At the outset we observe we complains Plaintiff-appellant error of upon to there called determine whether relief the de- (a) to awarding affirmative partial been abandonment. is and has dissolving (b) cross bill fendant his recognizes a right answer Defendant’s parts temporary injunction and not plaintiff “to maintain a roadbed move restoring judgment. the final As to them in prays His its trains.” counterclaim appellant contends (b), this claim of error enjoined “except according plaintiff to be temporary injunction should have that the way the of deed.” Fur- right the terms of enjoin only de- been modified so as to the ther, question brief does not the he premises entering fendant from the says it immaterial. abandonment but is for the easement during the existence of purpose opinion we For must this except min- purpose the removal of right way assume that exists. erals, interfering in otherwise plaintiff, any manner with whatsoever The interest which consignees, in shippers the “free its land across defendant’s is easement. strip.” said unrestrained use of Conveyances are held only.1 propriety general affecting As both to create easements respect counterclaim and the rule in is that injunction on the easements modify perma- may the court to owner of servient estate use the failure any purpose cer- (instead dissolving premises which injunction is not nent Highway 84c(1), p. Railroads rel. State Commission Grif § C.J.S. Weare, fith, Mo. Al 348 Mo. 152 S.W. S.W.2d Brown Beasley, 649, 652, ex State len 297 Mo. S.W. 136 A.L.R. 2d the easem be one purpose of which primarily public inconsistent with the is pub But, (railroad), a matter of private ent.2 as even though somewhat individ railway right may ual benefit; policy, lic receive the holder individual and a course user (subject of where primary easement can benefit is for the exclude grant) individual public reservations in the only is benefit And tenement.3 incidental the owner of the servient is proper not a railroad use.7 lawfully Perhaps itself may a railroad do quoted what the most often case which way it respect to the use accords Appeal, this view is Lance’s lessees.4 may delegate be done 55 Pa. 93 Am.Dec. in which it is
said, loc. cit. 25: power In so far “Hence it pre- is no one can the use of its railroad is concerned in tend company may that a railroad build only by charter- property, it is limited private mills, houses and erect ma- franchise, is statement general chinery, not necessarily connected with power permit the use of its it has franchise, use their within the which property purpose limits of their it If interfere with and does not inconsistent could, stores, taverns, shops, groceries purposes.5 As to its use for railroad and dwellings might be made to line railroad, generally the sides of outside the road the track may (subject restraints thing—a thought not to be of under the quantity imposed by or withheld acquisition terms of the may domain) it taken in of title eminent way.” all incidental use And “reasonably necessary (we view, under this think purposes correct) which are the fact may that the facilitate the receive the in order to or convenient” of securing this benefit an additional operation gen But customer of its business.6 by and thus increase its business is narrowed incidental statement is somewhat eral that, controlling as to in order for the nature of pronouncements the use.8 purposes,” it must Otherwise there is to be “for railroad no end *7 112, p. Kaiser, 607, Am.Jur., Basements, ville v. 2. 17A sec. 161 Tenn. 33 S.W.2d 72, 719; p. 750. 411. § Basements 28 C.J.S. 100b, pp. Railroads, C.J.S., 505- 6. Rombauer v. St. Louis-San Francisco 3. 74 R. § Ry. Co., Mo.App. 78, 155; 506; Louis, W. Co. v. 225 34 St. K. & N. S.W.2d Hodges 906, Clark, 169, 192, Co., 121 25 S.W. v. Atlantic Coast Line R. Mo. Boyce 528, 751; 66, 196 Pacific N.C. 144 L.R.A. v. Missouri S.E. 59 26 A.L.R. 920, 1284; Co., 583, Co., 52 Weir v. Oil R. 168 Mo. 68 S.W. Standard 136 Miss. 205, City Ry. 290; 442; Chicago, Sturgeon 101 I. & P. Co. So. see L.R.A. R. v. 38, George, (For Mo.App. 633, Co., Wabash R. S.W. 11. 145 Mo. 223 17 v. 47 contrary view, Atlantic Line S.W.2d a see Coast 616. 579, Bunting, Co. 168 N.C. 84 S.E. R. v. p. 508; 101a, 7. 74 C.J.S. § Railroads 1009.) Spokane Ry. Co., Neitzel v. International Railroads, 131, p. 345; Am.Jur., 100, 864, L.R.A., 4. 44 65 N.S., 522; Sparrow sec. Wash. 117 P. 36 1287; A.L.R., p. annotation 59 Grand Dixie v. Leaf Tobac Railway Co., Richardson, 700; 589, Trunk Co. 91 co v. 232 N.C. 61 S.E.2d see 454, 356; Wilczinsky Louisville, Ry. 23 L.Ed. Weir U.S. v. Stand v. N. O. & T. Co., 205, 290, Co., 595, 709, 712; ard Oil 136 Miss. 101 So. 66 Miss. 6 So. see St. 292; Mfg. Co., Louis, I., Cape Anderson v. Interstate M. & S. R. Co. v. Girar 455, 812, L.R.A., Mo.App. 152 Iowa N.S., Co., 406, 132 36 N.W. deau Bell Tel. 134 114 586, 512. S.W. 588. Thompson Property, 2, Sparrow 5. on Real Co., vol. sec. 8. v. Dixie Leaf Tobacco 232 716, p. 405; 101, p. 700, 74 589, 703, C.J.S. Railroads § 704, N.C. 61 S.E.2d A.L.R., p. 731; cited; see 61 annotation Ry. Co., cases Bond Texas v. & P. A.L.R., p. ; L.R.A., 406, 149 378 763, annotation 36 181 La. 160 So. 408-409. N.S., p. City annotation of Knox
738
station,18
house,17
ing
a
and a
letting
filling
retail
in
might go
railroad
which the
chute,19
proper
coal
way;
are held not to be
the use
railroad uses. In Missouri the construction
primarily
the bene
for
Whether a use is
employees,
bunkhouses for
neces
when
is a
the individual
fit
railroad or
sary to have
them
in order
available
sim
becomes
question
fact
often
slides,
necessary
combat rock
was held a
determined
degree to be
ply
a matter
eating
use.20 A
house
hotel and
case, and
in each
according to the facts
for the
employees is
accommodation of its
al
country
not
are
decisions over the
primary
a
But the main
use.21
that,
held
ways
generally
It is
accord.
tenance
the right of
of coal
depot
place
gathering
a
as a
for
sheds to which coal
cars
was delivered
entrainment,
stockyard
passengers
for
side track
and from which
coal
“depot”
of livestock
gathering
for the
sold at retail was
proper
said not to be a
depot
is a
shipment.9
grain elevator
A
railroad use.22
handling
grains
gathering
warehouse,
shipment.10
when used
A
source of the rail
this case the
receipt
delivery
freight, is a
use came from
road’s
proper
maintenance
railroad use.11 The
of eminent
exercise
domain.
receipt of carload
bulk stations for the
respect
general
statements
proper
shipments
also held to
oil is
but the
guide,
to use are valuable as a
use.12
question
ultimate
in this case must be
and,
grant;
determined from the
whatever
things, such as
variety of other
As to a
general
may be,
law
the railroad’s
13
houses,14the
wholesale
lumbersheds
by)
(or
to use is limited to
extended
accord.
decisions
permitted by
grant;
and the bur
wareh
others,
tobacco
den of
such as a
servitude cannot be increased be
Still
gather
yond
ouse,15
given by
a cottonseed
gin,16
grant.23
a cotton
Sparrow
Joseph,
Co.,
R.
&
Fe
15.
v.
Santa
Dixie Leaf Tobacco
232
9.
St. Louis
St.
327,
700,
Smith,
N.C.
61
70 S.W.
S.E.2d 700.
170 Mo.
Co.
702.
Ry. Co.,
16.
Texas &
Bond v.
P.
La.
Ry. Co.,
Chicago
& Alton
741 subject not temporary injunction provisions did 2' paragraph the While the to any prevent exercising section, requires ap- the defendant from such which that no he pellate which any judgment user in the court shall reverse had, language at so broad that time unless it that committed believes error was that, permanent, would against appellant. had it been made it trial court have rightful entry by foreclosed defendant appeal The defendant’s has been all fu- under circumstances in the position dismissed. isHe here in the same ture, plaintiff in un- gave effect full and though appealed as there he had not purposes restricted all use appears only up purpose fore for the complete and for all time exclusion holding the action of the trial court. of the defendant. we think that Nor do appellant’s Where in the error is favor and suggested by modification in manner respondent appealed, (re has not he appellant required. It had served its spondent) judgment is not entitled to purpose, bad, good supplanted until affirmative relief in excess of that rendered permanent injunction; we do by the court below.31 believe that a court wrongful user can ask a equity protect making him his in complained Plaintiff in ex- of error wrongful though use. Even it difficult respect proof in a claim (a) clusion of temporary see how in- the issuance of the past negotiated that in defendant had junction could have finan- resulted ramp plaintiff with building for the injury pe- cial during to the defendant scrap loading for the iron on the riod of and under of its the circumstances way adjacent lying mother tract west existence, cannot we hold court to be case; (b) of the tract in this involved partially supplant- dissolving error in it and plaintiff many has in force leases similar ing finally judgment it which was purpose involved with a view and the one rendered. traffic; railway that the increasing (c) followed injunction cross-petition, lease was on a standard form and
As to enjoined practice; the Interstate plaintiff (d) it a common (only) from various has zoned which to Commerce Commission interfered defendant’s method and purposes railroads as to establish mining enter for reserved price leasing. the the- Under the deed. This was than defendant standard less ory think all those apply we to this case we was entitled to. Plaintiff should have been enjoined things leasing immaterial. the use permitting premises purpose operat- complains of the also exclusion Plaintiff ing piling a sand and rock and concrete prohibiting Joplin ordinance mixing business. city ordi- limits. We think this within
Both in their which we request- have is immaterial to the issues briefs nance ed we render judgment appeal, although such as should have to decide on this have But competent been rendered.30 it will no- might not be in some might or parties. paragraph ticed that ordi- 3 of sec. 512.160 action between the other 1949,V.A.M.S., provides RSMo which nance could appellate “give plaintiff did court judg- shall such in defendant’s land know, aught ought given,”
ment as court to have before—and for not have 369; Rice, Mo., 497; Moore Hoff Anison v. 282 174 S.W. v. S.W.2d Mo. 339(18), Laumeier, man, Laumeier v. 308 Mo. 39 S.W.2d Mo. 135; Concrete Steel S.W. 481. A.L.R. Co. Co., Mo.App., Concrete Reinforced Lynn Stricker, Mo.App., Krummenacher 213 S.W. S.W.2d Mo.App., Supply Gilder, Co., Mo.App., 2d Reece v. Van Auto Western Lewis, 281 S.W.2d Whittaker v. S.W.2d *11 meet happy sufficient to Joplin may be City of tomorrow the industry within threat. mining revived to have city limits. counterclaim, judgment As to the on the judgment is affirmed. The any made agree that defendant had attempt to his
bona fide exercise But trams, rights, ponds, et cetera. build STONE, McDOWELL, J., J., and P. and the right, defendant does have that concur. large piles of sand maintenance of threat some Rehearing On stone do constitute Motion for crushed of that assignment or against the exercise event, judgment re- right. PER CURIAM. doing that plaintiff only from strained the judgment petition prevents on the error, and, if which it had no to do erecting gir- defendant from fences was harmless. ders on These were complained had of. If further delineation acts This desire all defendant had done or to do. rights, they threatened in an should seek such of their implied If threat in- there was an of other appropriate action. plaintiff’s posses-
terference with lawful appellant’s rehearing sion, motion for portion then the judgment re- Supreme straining making defendant from transfer cause to the Court plaintiff’s use which interferes with use for is overruled.