Nagel v. Lindell Railway Co.

167 Mo. 89 | Mo. | 1902

VALLIANT, J.

This is a suit in equity aiming to enjoin the defendants from constructing a street raihyay in Hamilton avenue in St. Louis. The circuit court sustained a demurrer to the petition, and the plaintiffs declining to plead further, the court rendered judgment for defendant, from which one of the plaintiffs appeal.

The petition states substantially that the plaintiffs severally own lots in the city fronting Hamilton avenue, which is one of the public streets of the city, and that defendants, who are three street railway corporations and their officers, are aboxit to construct a double-track railway through Hamilton avenue under authority of a certain ordinance, of the Municipal Assembly approved October 28, 1898, being No. 19429, and which is set out by literal copy in the petition. Without here copying the ordinance, which is very long, it is sufficient for the purposes of this case to say that it confers the authority to do what the petition states the defendants are about to do, provided the ordinance is valid, and provided the defendants have not omitted to perform some duty they owe to the plaintiffs preliminary to entering upon the work. The petition charges that the ordinance is illegal and void because it was “fraudulently and corruptly passed by the Municipal Assembly of said city, by reason of said defendants, their agents, servants and attorneys corruptly bribing and paying the city aldermen, councilmen and members of the Municipal Assembly large sums of money, or promising to pay the aldermen, councilmen and members of the Municipal Assembly of the said city of St. Louis, stocks, bonds, privileges and large sums of money, to vote for said pretended franchise and ordinance.” The petition states that acting under that ordinance the defendants or one of them has “unlawfully and forcibly entered or is about to unlawfully and forcibly enter in and upon said. Hamilton avenue, adjacent to and in front of the said real estate property of plaintiffs, above described, for the purposes of constructing and operating a street-railway in and upon the said Hamilton avenue and have hauled and deposited rails and ties,, or are about to deposit rails and ties, upon the surface, and have dug up or are about to dig up the surface and tear up and remove the paving from said Hamilton avenue, and are now or about to' engage in making excavation in said Hamilton avenue, and have or are about or threaten to occupy and obstruct said avenue with horses, men, timbers, street car tracks, street cars, electric wires, and poles and other obstructions, as to temporarily prevent and permanently impair the. use of said Hamilton avenue as a public thoroughfare, thereby preventing these plaintiffs from going to and from their respective real estate property over and along said Hamilton avenue, and thereby greatly depreciating the value and damaging their respective real estate property and their personal property, to the great and irreparable injury to plaintiff’s said property; that where said Hamilton avenue adjoins plaintiff’s property, it is also a narrow street, and to build a double street-car track thereon. will greatly impair its usefulness, there not being room between the curbing and street-ear tracks for buggies and wagons to pass.”

Petitioners aver that it was the duty of the defendants, before damaging plaintiffs’ property, to ascertain the amount of the damage and pay it, but that they have not done so nor agreed with plaintiffs in relation to the damage and no proceedings have been instituted to assess the compensation to be paid plaintiffs for the injury threatened. The prayer of the petition is that the ordinance be declared null and void and defendants be perpetually enjoined from constructing and operating the street railroad, so projected through Hamilton avenue.

I. A mere charge of fraud without specification of the act or acts which constitute the alleged fraud amounts to nothing in pleading, and would be stricken out on motion. We have said this so often that it would seem useless to cite authorities to support, it. [Bank v. Rohrer, 138 Mo. 369; Goodson v. Goodson, 140 Mo. 206; Burnham v. Boyd, 167 Mo. 185; Wood v. Carpenter, 166 Mo. 465; 9 Ency. P. & P., p. 683.]

The petition charges that the Municipal Assembly was corrupted by bribery, but it does not state who was the briber, nor who the bribed. There are three corporations involved, two of which, according to the petition, acquired their interests after the franchise had been granted. Whether it is intended to include them in the charge is not clear; “their agents, servants and attorneys” designates a large and unknown class; “the aldermen, councilmen and members of the Municipal Assembly” covers a large number of officials in general, but points to no one in particular; paying or promising to pay “stocks, bonds, privileges and large sums of money to vote for said pretended franchise and ordinance” is as vague and uncertain as language could make the charge.

There is no statement as of a fact which could be traversed, there is no issue tendered. A demurrer admits only facts well pleaded, it does not admit a mere characterization which is all there is of the charge of fraud in this petition.

II. In Lockwood v. Wabash Ry., 122 Mo. 86, this court decided that the city of St. Louis could not grant to a railroad company a license to so use a street as to practically destroy it as a highway for the general public. Whilst recognizing the authority, in the city to permit a railroad company to occupy the street along with the public, it was decided that such permission could not be given to occupy it to the exclusion of the public, and the facts in that case showing that the use threatened by the railroad would practically exclude the public from the street, an injunction was granted at the suit of an abutting property-owner. The same doctrine was announced in Lumber Co. v. Ry. Co., 129 Mo. 455, and Sherlock v. Ry. Co., 142 Mo. 172.

The plaintiffs seek to bring their case within the law as declared in those cases, but their petition fails to show a similar condition.

In the first, of those cases it was shown that the street was only twenty-four feet wide from curb to curb, and in that space in front of the plaintiff’s property, the defendant had laid double tracks for its steam railroad. In the second, the street was occupied by four tracks of two steam railroads, and the defendant was about to occupy the sidewalk with other tracks in front of the plaintiff’s property. In the third case there was a steam railroad about to be laid along an alley sixteen feet wide. In the case at bar we have a street railroad to be laid along the surface, which in itself is not inconsistent with the use of the street at the same time by the general public. The width of Hamilton avenue is not stated in the petition. The statement is “it is also a narrow street, and to build a double street-car track thereon will greatly impair its usefulness, there not being room between the curbing and the street car tracks for buggies and wagons to pass.” That is the statement of a mere .conclusion, and we are unable to judge of its correctness as an opinion without knowing the width of the street or the distance between the track and the curb.

Section 1825, Revised Statutes 1889, 'which was in force when this controversy arose, is in reference to building street railroads under license from the city and contains this clause: “Before taking or damaging any property in the construction of a railroad under such franchise, said corporation shall cause to be ascertained and determined the damages that will be done by the building and operation of such railroad, to the real and personal property situated on the route fixed by the ordinance defining such franchise, and shall pay to the owner or owners of the real and personal property so affected, or into court for them, the amount of their respective damages.”

It is contended- on the part of appellants that this statute gives them a right to recover damages where none existed before. That view of the effect of this statute was urged with great force by learned counsel in Ruckert v. Grand Ave. Ry., 163 Mo. 260, but after a careful consideration of the subject this court came to the conclusion that that was not the correct meaning of the statute and we are satisfied with the decision in that case. The opinion by Gantt, J., shows that, in conformity with the uniform rulings of this court both before and after the adoption of the present Constitution, the damages to be ascertained and paid as contemplated in that statute were those peculiar to the plaintiff “different in kind and not merely in degree from those suffered by other members of the community.”

It was also shown in that opinion that it has long been the law of this State that “the laying of a railroad track pursuant to authority granted by the city, on the established grade of a street, did not subject the street to a servitude different from that which was contemplated in the original dedication, and the damage to an abutting owner resulting from such use of the street was damnum absque injuriaP That is the doctrine in this State to-day, subject to the qualifications pointed out in Lockwood v. Ry. Co.; Lumber Co. v. Ry.; and Sherlock v. Ry., supra.

The plaintiffs in tbeir petition do not show that they have suffered or will suffer any damage peculiar to themselves. They do say that the defendants, preparatory to constructing the railroad, are depositing rails and ties and are tearing up the street and obstructing its use, etc., and “thereby preventing these plaintiffs from going to and from their respective real estate property over and along said Hamilton avenue,” etc. But those statements relate to the inconvenience resulting in the necessary work of construction and are such as result in every street reconstruction. The damage resulting from the condition does not entitle the plaintiffs to an injunction of the kind sought in this suit.

The demurrer to the petition was properly sustained and the judgment is affirmed.

All concur.