*1 Vol. Public Service Commission.
Richards v. complain, vague, appellant cannot case, somewhat was subject. no instructions on asked IX. As was amount verdict: injured, plaintiff severely $20,000. yet, doubt no While was have out set evidence, in which we view substantially more more it is fullness, than usual we think permit precedents stand, than the in court will this $7,500. sum is excessive plaintiff a remittitur will file If, therefore, VerdietT6 this court clerk óf that amount with opinion days filing in said within ten judgment affirmed for be below will office, clerk’s per pér annum interest six cent $12,500,with original court. the circuit thereof time of the rendition re cause be will reversed Otherwise, Rag ordered. it be so Let manded for trial. another absent. Brown, land, C., concurs; C., opinion by Small, foregoing PER CURIAM:—The adopted opinion All of court. C., as the judges concur. COMMISSION
J. F. SERVICE RICHARDS PUBLIC Appellant. MISSOURI, O F April 8, One, Division Highway. Property: Public RAILROADS: Switchtrack Over Private abutting and a street on a Where owner petition granted, city, upon alley city there- in a such for, cause to maintain or down, operated switchtrack and maintained laid purpose lots “for the also across his said such street and loading shipping discharging receiving on from and merchandise,” cars, goods, and such wares and other subsequent- accordingly used and constructed and switchtrack was adjacent ly serve industries lots and used to was extended across highway, thereon, was a such switchtrack located public rights'and public control. 293 Mo.—40 SUPREME OF MISSOURI, COURT 2. -: -: -: Dedication to Public Use. The acts of owner, clearly obtaining petitioning grant, such for and implied switchtrack, built, operated and main- so to be tained, public, *2 he and the the use the because both city right grant council latter knew had to no highways city, to it was to track across the unless public, for the a used benefit of the acts constituted such public right dedication of a therefore over use private notwithstanding track was constructed .such primarily industry. to serve his own State, through -: -: -: —-: State Control. The Commission, right control Public Service had the to exercise integral part over such railroad switchtrack with highways public which it. was and as one connected State, require company and to the whole thereof, and to switch and handle cars thereover for of all occupants passed, owners which lots over the same without them or discrimination between of them for like regular rates, notwithstanding at service and tariff the fact over such switchtrack owners the lots which years original grantee paid for a rental extended had to build the for the use thereof in connection same grantee their such had forbidden the lots and railroad payment to serve other lot without owners continued ol such rental. Appeal Circuit B. Court...—Hon.' Thad Jackson Judge.
London, Reversed. 1). Spencer Lindsay appellant.;
B. P. and James Hughes, Roland of counsel.
(1) case, track involved in this grant public authority, oper- constructed ‘‘ ’’ ated common a carrier, and maintained a provisions within Art. Mo. Constitu- XII, Sec. Ry. Murdock, 279; tion. v. 42 Mo. Dietrich Brown v. Railway, 529; 137 Mo. Co. v. Co., Union Line 233 U. S. ¡Mo. 161 211-222; Railroad Co. v. Coal Co., 288. And provisions within Public Service Commission Law; Subdiv. 10411 and S. 8, Sec. Sec. R. 1919. That of the track to be over constructed (cid:127) Yol. Public Service Commission. v. .respondent integral part
lots of
of the whole
anwas
permitting
cross-
under the terms of the ordinance
ing
whereby
Hickory
other
than those
uses
Street,
imposed.
respondent
authorized and
Richards were
Acceptance
Railway,
(2)
Hairston
S. 598.
v.
208 U.
oper-
enjoyment
grant
construct
continued
alley,
ate
a
a switch railroad track across
designated
along
des-
line, to
street
ignated point,
evidence of a devotion
conclusive
thus
the.
constructed and
city
use. The
could not make
for a
Cummings
508;
Assn.,
use. Glaessner Brew.
Mo.
Mo.
Schopp
263;
90 Mo.
v. St. Louis,
St. Louis,
Ry.
Sugar
86;
Belcher
Co.,
Lockwood v.
133;
Light
124;
Elev.
inf.
Co.,
Co. v.
State ex
Jones
Ry.
137 Mo.
Co.,
& Dev.
Brown
*3
Ry.
539;
rel.
140 Mo.
13 R. C. L. sec.
Co.,
State
v. St.
ex
(3)
Ry.
p.
The
202;
use, and without (5) power The not be denied. can State, regulate exist which not State to can enjoyed except through privilege by granted or be by wholly between contracts, can not be controlled State, parties, conduct their the interested respect Comm., of the Public use. ex rel. v. Serv. State 270; rel. v. Mo. 645; Mo. State ex Commission, Railway Louis, Tobacco Co. St. v. Du- Railway Minneapolis, luth, 208 U. S. U. S. (6) right granting The to construct ordinance gov- purely track was accomplished by ernmental act of the subor- State, agency, city. regulation dinate The of the use of the track remained not State, was private parties lost by acts nor waived interested, police failure a time exercise the State over of the use. Art. Sec. 5, XII, Light Constitution; inf. ex. & Dev. State (7) apportionment parties The terms of between expense constructing interested of the track, authority beyond, to construct across street, distinguished and is matter collateral, regulation operation of the use and after it prop- was constructed. The of condemnation erty,'or taking compensation without proceeding, directly does arise either or in derivative from the action of the Commission. rights parties, any, arising respec- if out of their *4 tive for the contributions construction of the a judicial question, independent controlling, of, and not regulation property, use system (8) of a common carrier. “The Commission’s supervision is not limited to rail- lines constructed road expressly nor those it; to. owned it is extended Tines and owned, leased, controlled operated’ by company.” Ry. v. Serv. Co. Public (Sub. 279 Mo. Comm., 490; 10411 8), Secs. 6 and 10425 (Sub. 3), 1 and 10435, 10436, 10437, 10433, 10452, 10458, (U. R. Supervisors, S. 1919; Olcott v. S.) 16 Wall. 695. Vol. 293] 1921. 629 respondent.
Lathrop, for db Moore Morrow, Fox (1) constitu- The order Commission violates provisions, (a) tional be taken Private cannot compensation. Constitution, use without U. S. 14th art. 2 secs. 1; Constitution, Mo. Amendment, sec. (b) 20 and 21. Neither nor creature, the State ruling law or Public Service make Commission, can S; impairing obligation Constitution, U. of contract. App. 316; art. sec. 1, 10; State v. 143 Mo. Wood, Carpenter Joseph, (2) The 263 v. St. Mo. 714. given
of eminent domain Public Com- is not Service Murphy Comm., 2 mission. v. Missouri Pub. Serv. Pacific, Rep. 471; Pub. Serv. Bush, Landau Co. v. Cabinet Rep. could (3) Comm. Commission 476. Before the necessity jurisdiction, public acquire convenience and Quincy, Chicago, Burlington must be shown. & v. Smith Rep. v. Mill Co. 5 Chicago, 124; Pub. Serv. Comm. Mound Rep. Quincy, Burlington Pub. & Comm. Serv. (4) Laws track" is a railroad. This ques- p. (5) p. 161; Laws sec. The already tion tlie involved order Commission Imp. Ferguson judicially determined. App. 428; State Pub. Comm., Serv. Atchison, Atkinson, Lusk Topeka & Fe Pub. Comm., Serv. S. W. Santa appeal
RAGLAND, C.—This is from a County, setting of Jackson the Circuit Court aside annulling an order Public Service Commission re- Company quiring Pacific Railroad Union City, switch track in of a certain whole passes all the owners of lots over the use of which with- between them. discrimination out begins point at the with a side track connection Union Pacific Rail- Company or near the of lot 25 o.n west line in block
road Addition 45 of Turner’s to Kansas extends thence thence northeasterly alley block, Hickory eastwardily crossing paralleling the 7 and 1, 2, 3, 4, 5, 6, Street and south ends *5 MISSOURI, OF SUPREME COURT Commission. Richards v. Public Service terminating side at east in addition, block 44 of said of said lot 8. buildings year time the since that In the 1878 and including those Addition, in on the lots Turner’s and used been, and have to, were, the lots last referred occupied in wholesale connection warehouses, During time J. F. all mercantile businesses. 1, 2, and the owner of Richards said response asking petition In Kansas track the a railroad Common Council following or- duly enacted 13, 1878, December on : dinance Company, their That F. Richards & J.
“Section they hereby assigns, author- be are successors and and empowered maintain down, ized and and maintained and cause to be laid point, connecting with, from a and Railway Company, Pacific the sidetrack Forty-five alley in Turner in Block Com- south of the and pany’s thence Missouri, of Kansas, Addition to the alley in in rear 22 and 23 said of lots over and across Hickory Forty-five; Block thence over and across said being rail three feet north of the north the south Street, alley the south ends of Lots 1, 2, line of said 3, 4, Company’s Turner & Addition, Block said .44, discharging receiving load- purpose and from and goods, shipping ing on railroad other cars, wares and merchandise. granted authority 2. That Section
“Section on is, however, one of ordinance condition that the Company, said J. E. & their successors assigns, cause shall construct or to be constructed kept repair the said switch where alley Hickory Street same crosses said on a level with grade Hickory established Street, keep space between and construct' and the rails and planked space on the outside of two feet of the rails planks oak with white burr two one half inches planks thoroughly spiked should thick, placed ties so as to connected and make a cross Vol. 1921.. *6 crossing one
safe from two feet outside of rails on the of side said track to side two feet on the other railroad of shall clear said and extend said and across “ including street and the of said street. sidewalks “ Section 3. That no remain on said switch cars shall track and where the same crosses said street railroad alley any longer any than the ten minutes at time, and alley by use of said street the and where impeded switch track crosses the railroad same shall be by operation possible with little as interfered the. ” of said switch track. railroad 'Immediately upon passage approval the the of predecessor the of ordinance, the Union Pacific Railroad arrangement pursuant Company, with to some E. J. Company, track Richards & the switch constructed question point, of its connection with com- the pany’s side track to the east line of lot Whether expense bore all Richards the of the construction, paid only extending whether he the track his across by in doubt evidence. lots, is left But in event only part now claims of track that is on his premises, company while the claims all .that original west thereof. after Soon construction by it extended presumably expense 5, 8, at the 6, owners previously agreed who lots, those with Richards pay part him rental for the use of the that was on his lots.
Ever since its construction the whole switch track com- maintained pany yards in connection with its and as one its industrial tracks. has, so far as is concerned, occupants served owners of lots 1, 2, 3, 4, 5, 6, setting respective premises cars alike, on their loading unloading,. rendering In service, company, charges with reference to made therefor its schedule has at all tariffs, times treated part system switch track as a itsof terminal City. at Kansas OF MISSOURI, SUPREME COURT track across time of extension
From the down about ends of lots per stipulated paid sum owners those lots Richards agreements per according to their several month, car, having privilege over that cars moved for the him, premises. or about was on On the track Company, Implement Ferguson the date last named payments, make further refused to owners, one alleged against it instituted for rents suit af- in Richards’ him. A favor was be due Appeals. [Richards firmed Court Implement App. v. Implement Thereafter the 428.]
Company other lot owners and the continued pay privilege having Richards for cars switched *7 early part At that of 1919. lots the his until cotroversy respecting payments, time a arose the company switch not to Richards notified any any his them over the track on more cars Thereupon company premises. other advised the the switching lot owners that the service would have to they agreement with discontinued until come to Richards. representatives April Neff,
On Sarah 14,1919, G. George Bowling, Estate and E. J. C. Gates respectively petitioned then 5, owners of lots 7 6, 8, and' requiring for an Public Service order Commission company switching to continue the railroad service by as theretofore rendered it. The parties proceeding made and Richards were hearing at Kansas was had before the Commission hearing the evidence November After respective by parties, offered order Commission ed: Company
“That the Union Pacific here- is Railroad by required directed and the whole of the application, switch described to switch and handle thereover cars for the use of all occupants the owners or of the lots over which passes, without between switch track discrimination Yol. OCTOBEB TEEM, any
them regular of them for like service, at tariff rates.”
Bicharás sued out a writ of certiorari, a re- and on proceedings view of the had before Commission there- County, under, the Circuit Court of Jackson on March gave judgment setting annulling aside and order heretofore set out. Prom that Com- prosecutes appeal. mission controversy
I. repre This is between the State as by sented the Public Service and the re Commission spondent Bicharás. The former asserts that whole the switch track in rail Switch Track: integral part road, of a railroad, Highway: Public Dedication. use, and as supervision. within' its latter con The tends that is on his lots is consequently, property and, not regulatory powers of the The State. Union Pacific Rail Company ready willing indifferent; road stands it is may comply order with the if Commission, lawfully, violating, rights without is, do so .that controversy, Bicharás. The therefore, turns portion question, occupied whether Bicharás’ appropriated by track has con stitutional method a railroad way. Public Service Commission could *8 public Bicharás’ order, course, use; of land to a formally conveyed he himself has never dedicated or it to nor such has it been taken use; therefor under the power of eminent If, domain. then the railroad right way a has a as common carrier over his dedication, implied part. it is because of on his Was analysis a That in there such dedication? the final is only question in the involved case. apart
It is said: the intention of owner to set public use of the his lands for the is foundation and only every life unequivocally dedication, and when this intention is can manifested a dedication he to found exist. The acts declarations owner relied toon SUPREME OP MISSOURI, COURT unequivocal, convincing by in- it must be and
establish'
dicating,
purpose
expressly
plain implication,
to
a
adversely
right
to
to use
land
a
in the
create
Marquardt,
Such
was tó be ex *9 TERM, 1921. Yol.
Stoff v. Sehuetze. Light inf. Dev. Glaessner & the, pro Brewing In other words, Assn., 508.] respondent acceptance by curement and ©f public a switch and maintain to public highways along des track across part ignated a declaration on his tantamount to line, public highway, he as a that the track was to rights true, is control. This primarily notwithstanding that was constructed industry. Railway Com [Hairston own to serve his pany, Railway, Co. Lime S. Union U. having after And received the 211, 221.] 233 U. now S. under caused track to he constructed franchise, grant, put pursuant into terms say operation, he he will not heard that premises property is on his impressed with a use. in no judgment circuit court, follows annulling Public the order Service Commission, reversed. It is so ordered. Small, G., concurs; should he Broiun, absent. G., opinion by foregoing Rag-
PER CURIAM:—The opinion adopted hereby court. C., land, judges All of the concur. Appellant, v. MARY STOFF, SCHUETZE and EMMA REESE.
LOUIS C. April 8, One, Division Resulting Purchasing With. Trust: Land Estate ADMINISTRATOR.: purchased land estate at an Where an administrator of Funds.' estate, sale favor funds execution name, estate, own in his held the and took title thereto entitled and those thereto. trust estate Competent: Party Declarations of in Interest De- WITNESSES: testify competent is a decla- Person. An heir witness ceased bought funds lands with estate of an administrator who rations