Placke v. Union Depot Railroad Company.
41 S.W. 915
Mo.
1897
Check Treatment
Gantt, P. J.

This is a suit in equity to enjoin the defendant from constructing and operating its electric street railway on Nineteenth street in the city of St. Louis, under ordinances of said city granting it the right to build and maintain such street railway on said street. The circuit court of St. Louis sustained the demurrer and plaintiff appeals!

I. The plaintiff raises the constitutional question that the city by the passage of this ordinance is depriving plaintiff of his property right of access to the street adjacent to his property by destroying its character as such. Ferrenbach v. Turner, 86 Mo. 416; Glaessner v. *637Brewing Ass’n, 100 Mo. 508; Schopp v. St. Louis, 117 Mo. 131.

If the ordinance has the effect of destroying this property right without just compensation therefor or subjects the property to a new servitude, a constitutional question is involved which confers jurisdiction upon this court. Const. of Mo., art. 2, secs. 20 and 21; Const. of Mo., art. 6,. sec. 12; Amendt. of 1884, sec. 5.

II. The plaintiff relies upon Lockwood v. Railroad, 122 Mo. 86, as sustaining his claim. That case and the subsequent cases, Knapp, Stout & Co. v. Railroad, 126 Mo. 26, and Schulenburg-Boeckeler Lumber Co. v. Railroad, 129 Mo. 455, decide that a city has no power to authorize such use of a street as will destroy its use as a- public thoroughfare, and enjoined the maintenance of steam railroads in said streets under the peculiar circumstances in each of said cases. It is a misapplication of those cases, however, to apply them to the construction of street railways unless such street railways are so defectively constructed as to prevent the current use of the highway by the public in the ordinary course of travel.

This petition seeks to enjoin, not the construction of a street railway which is not laid at grade, or is to' be otherwise defectively or dangerously built or laid, but the construction of any street railway, claiming that the use of the street for any such railway is an invasion of the plaintiff’s rights as an abutting owner.

We think the law is plainly written against plaintiff’s claim. In Ransom v. Railroad, 104 Mo. 375, in which the claim was much like this, it was said: “Such a street railway as this, so laid and operated as not to materially impair access to or the enjoyment of the adjacent property may lawfully be placed in the public highways of a city, if especially sanctioned by proper *638authority.. Such a use does not impose any additional burden entitling the owner of adjoining land to compensation, nor can it be justly regarded, at the present day, as any substantial impairment of the public easement or of the private rights of proprietors of land abutting on the street."

We think it must now be regarded as settled law that an electric street railway laid to grade is not an additional servitude and does not infringe upon the property rights of those whose lots abut on the street. Dean v. Railroad, 93 Mich. 330; Koch v. Railroad, 50 Am. and Eng. R. R. Cases (Md.), 401; Lockhart v. Railroad, 139 Pa. St. 419; Railroad v. Railroad, 156 Ill. 255; Taggart v. Railroad, 43 Am. and Eng. R. R. Cases (R. I.), 213.

III. As to the general allegation that it injures plaintiff in a manner different from the inconvenience suffered by the public and other property owners on said street, it is the averment of a mere conclusion. No substantive facts are stated from which a legal conclusion must flow.

It follows that no ground for injunctive relief appears from the petition and the demurrer was properly sustaiued.

Judgment affirmed.'

Sherwood and Burgess, JJ., concur.