157 Mo. 71 | Mo. | 1900
This is an injunction suit to enjoin the defendant, Gordon, as mayor, and the defendant Bradshaw, as street commissioner, of the village of Conway, in Laclede county, from opening Washington avenue and Ruby street across the plaintiff’s right of way. A temporary in-junction was granted, which upon final hearing was dissolved, the bill dismissed and plaintiff appealed.
The petition alleges that the defendants are undertaking to lay out said streets across the right of way without any authority of law, and that to permit them to do so would be
The answer admits the plaintiff’s incorporation as a railroad and its ownership of its right of way, but alleges that its right of way is only an easement; admits that the defendants are proceeding to open said streets across the plaintiff’s right of way, but says they are officers of the village and had a right to do so by virtue of appropriate action of the board of trustees of the village; denies that to open said streets would deprive the plaintiff of its property without compensation, and alleges that said "Washington avenue had been laid out by defendant’s predecessor across the railroad, and that Ruby street had been laid out across the railroad by 0. TIanson. The replication specifically denied that Conway was an incorporated village or that it possessed the powers it was exercising; denied that Washington avenue was laid out across the railroad by its grantors, or that Ruby street had been legally laid out across the railway by C. Hanson.
At the trial, the following stipulation was made:
“It is stipulated and agreed, by and between the parties herein, that the St. Louis and San Francisco Railroad Company owns its right of way through the town of Conway, in Laclede county, Missouri, in fee simple; and did own the same at the time these proceedings were instituted by the same title and for several years prior thereto; subject, of course, to any rights the city of Conway may have acquired by virtue of any law or municipal action on their part to acquire title to any part thereof for street purposes.”
In addition to the admission in the answer and the foregoing stipulation, plaintiff proved that there were two crossings over the tracks in the town, and they had been in and used since the road was built in 1870. That the crossing sought to be made at Ruby street was in a cut and intersected the main and two side tracks, the switch stands and frogs
Defendants, to justify their acts in attempting to open the streets, introduced in evidence the original map of the town of Conway, filed March 15, 1870, and plat of second railroad addition to the town, filed April 20, 1881; also plat of O. Hanson’s First Addition, filed March 27, 1882. It introduced also the following order:
“At a regular meeting of the board of trustees of the town of Conway, the following, among other things, were ordered: Railroad crossing should be put in at Washington avenue and Ruby street, and the street commissioner ordered to notify agent. “ J. I. Gordon, Pres. Board of Trustees.
“R. J. Newport, Clerk.”
And also the following order:
“To John Lindsay, Agent St. Louis & San Francisco Railroad Company:
“You are hereby notified that the board of trustees of the town of Conway have ordered crossings put in at the following crossings: One where Washington avenue crosses railroad, and also one where Ruby street crosses railroad, within the corporate limits of said town; said crossings to be put in within thirty days from the date of this notice, or the street commissioner will proceed to put them in according to law.
“W. S. Bradshaw, Street Commissioner.”
“This April 19, 1897.”
The plats referred to are, 1st, a plat of the town of Conway, made by the South Pacific R. R. Company, through*76 Andrew Pierce Jr.,'its managing director, on tlie 13th. of March, 1870, and duly recorded on that day. It shows a town of twenty blocks, bounded by Olive street on the east, and Elm street on the west. Next west of Olive street is Pine street. Then next west there is Oommercial street, fifty feet wide. Then one hundred and sixty feet marked “Depot Grounds,” and showing a building (station house, apparently), platform (seemingly), and red lines which are supposed to represent railroad tracks. Adjoining this one hundred and sixty feet on the west, is Main street, fifty feet wide. Then, proceeding westwardly, are Spruce street and Myrtle street, and Elm street, the western limits of the town. All these streets run practically north and south as does also the right of way. Running east and west there are three streets, Washington, Madison and Jefferson avenues. All of these streets appear on both sides of the “Depot Grounds,” there is no indication on the plat of any intention that these streets shall not be opened across the tracks, but the plat clearly shows a contrary intention. The depot building and platform are between Jefferson and Madison streets.
The second plat is styled “Plat of the 2d Railroad Addition to the town of Conway in Laclede county, Mo.” and was filed by the St. Louis and San Francisco Railway Company on the 28th of April, 1881. So far as it pertains to the matter in hand there is no difference between this and the first plat above referred to.
The third plat was filed on March 27th, 1882, by 0. Planson, and is styled: “0. Hanson’s First Addition to Conway, Mo.” It purports to add blocks. 21, 22, 23, and 24 to the town and adjoins the town on the north. Blocks 21 and 22 lie west of the railroad tracks and blocks 23 and 24 lie east of the track. It shows Ruby street running along the south line of the blocks and crossing the railroad track. Between blocks 22 and 23 there is a vacant space left on the plat which is not designated in any way except by a red line drawn
Two questions are presented by this record:
First: Do sections 2609 and 7925, Eevised Statutes 1889, which require railroad companies to construct crossings where the railroad crosses “public roads or town streets now or hereafter to be opened for public use,” confer power upon municipalities by a mere order of its trustees or by ordinance to open a street across a railroad right of way, without any condemnation proceedings whatever; and
Second: Are "Washington avenue and Euby streets dedicated public streets?
I.
The power of a city, by ordinance or order of its board of trustees, or of a county court, by simple order, to establish and open a street or road across the right of way of a railroad, and to require the railroad company to construct and maintain good and sufficient crossings is claimed to exist by virtue of sections 2609 and 7925, Eevised Statutes 1889, and under the decision of this court in Hannibal v. Han. & St. J. Railroad Co., 49 Mo. 480.
The line of argument employed to reach this result is this: Railroad companies derive all their powers from the State. The State statutes require railroad companies to construct and maintain crossings, “where its railroad crosses public roads or town streets, now or hereafter to be opened for public use” (sec. 2609, E. S. 1889) ; the statutes of the State are as much a part of the franchise as if written in the charters of the companies: therefore a railroad company i« obliged to nut in crossings at all ”nads or streets that were established at the time the road was cnarterect or that may
The doctrine so announced and here contended for is in conflict with the express provision of the Constitution of 1865, which declared: “That no private property ought to be taken or applied to public use without just compensation” (par. 16, sec. 1, art. I. Const. 1865), and of 1875, which provides: “That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken
If it should be conceded for argument’s sake that every statute then in force or thereafter enacted is just as binding upon a railroad company as if dt were written in its charter (which would be a conclusion without a precedent) still it must also be conceded that the protection of the Constitution must also be read into the charter, and that under that protection the property of the railroad can not be taken for public use without just compensation, and the conclusion necessarily follows that the statute (secs. 2609 and 7925, R. S. 1889) only refers to roads and streets across railroads that have been established by due process of law, that is, by a condemnation proceeding in court, and after just compensation for the taking of the railroad’s property for the public use of a road or street has been ascertained and paid, and that no county court, city council or board of trustees can by simple order or solemn ordinance deprive a citizen or railroad of his or its property, even for road or street purposes. The amount of compensation, whether great or small, can not control the right or dispense with the judicial proceeding necessary to take the property or impose an additional use upon it. In this case it is stipulated that the railroad owns
II.
Are Washington avenue and Euby streets dedicated public streets ?
There is no possible ground for a contention tbat Euby street is a dedicated street across tbe railroad right of way. The stipulation agrees that tbe railroad company owns tbe fee to its right of way. Tbe dedication of Euby street by Hanson, in 1882, conveyed no title to tbat street across tbe right of way, because Hanson did not own tbat land and therefore bad no power to dedicate it. Hanson’s dedication of Euby street was effective only to tbe extent tbat Hanson owned tbe land covered by tbe street, and as be did not own tbe right of way his dedication of tbat street across tbe right of way of tbe railroad was of no force or effect. For this reason Euby street was nbt a legally established street, and tbe board of trustees of tbe town of Conway bad no right to order tbe railroad tp construct and maintain a crossing at tbat place, and no right to construct a crossing for failure of tbe railroad to do so. Tbe injunction should bave been made perpetual as to Euby street.
Tbe status of Washington avenue, however, is different. Tbe first plat on tbe town of Conway, filed in 1870 by plaintiff’s grantor, tbe South Pacific Eailroad, shows Washington avenue as a public street extending completely across tbe town from east to west and from its eastern to its western boundary. The railroad cuts tbe town into two parts by extending completely through tbe town from north to south. If it
■ It follows that the injunction was properly dissolved as to Washington avenue, but should have beqp. made perpetual as to Ruby street. For this reason the judgment of the circuit court is reversed and the cause remanded with directions to that court to enter a decree as to Ruby street alone.