190 Mo. 246 | Mo. | 1905
This is a bill in equity to enjoin the defendants from crossing the tracks of the plaintiff on Hamilton avenue, in the city of St. Louis. Upon final hearing the trial court dissolved the injunction and dismissed the bill, and the plaintiff appealed. This being a proceeding in equity, the facts will be stated in the course of the opinion.
The decisive question in this case is, whether Hamilton avenue is a public highway or street in the city of St. Louis. All other questions are subsidiary to this main question and the solution of the main question carries with it the determination of the greater portion of the contention of counsel for plaintiff in this case.
All the parties hereto are street railway companies in the city of St. Louis, organized under the laws of this State. . The plaintiff is a successor or grantee of the old St. Louis & Florissant Railway Company. In 1870, the St. Louis & Florissant Railway Company was a steam railway, operated upon a narrow-gauge track. The eastern terminus was at a point almost midway between Grand avenue on the east, Vandeventer on the west, Olive on the south, and Washington avenue on the north. Its western terminus was Florissant in St. Louis county. Defendant acquired its own right of way, which, at the point here involved, was thirty feet wide. At that time nearly the entire route of said railway lay outside of the city of St. Louis. When the city and county of St. Louis were separated and the limits of the city were extended, the locality involved in this case became a part of the city. At that time, and for many years afterwards, there were no streets in that portion of the city where Hamilton avenue now is, and very few houses of any character or description, About 1875- the owners of the property in the neighborhood of Hamilton avenue subdivided their land and platted it, laying it off into city lots and making them abut the right of way of the old railroad company. Thereafter, the locality rapidly increased in population and importance.. At a time, not definitely stated, but which all the evidence shows to have been about eighteen years before the institution of this suit, streets were projected, running north and south and crossing the right of way of said railway company.
During all said period of eighteen or twenty years, while the city was so using and treating it as a part of the public highway, Hamilton avenue, including the portion of the plaintiff’s thirty-foot right of way, aforesaid, was opened to public use, and was used generally by citizens for all the purposes for which streets are commonly used. During all that time neither the plaintiff nor its predecessors objected to such use or claimed that it was not a public highway. On the contrary, the plaintiff and its predecessors paid all of the charges, special taxes, and assessments which were levied against the remaining part of its private right of way, and which were levied by the city for the improvement of Hamilton avenue, includ
A public highway may be acquired over property of a private individual by, first, a grant or deed; second, a dedication by plat or deed, and, third, by acts in pais, which in law amount to a dedication. [Heitz v. St. Louis, 110 Mo. 618; Meiners v. St. Louis, 130 Mo. 274; Buschmann v. St. Louis, 121 Mo. 523.]
The question in this case is, whether or not the conduct of the plaintiff and its predecessors amount to a dedication by acts in pais, and whether or not the acts of the city constitute an acceptance of the dedication.
The testimony clearly and conclusively shows that the city treated the said portion of said strip as a part of Hamilton avenue for nearly twenty years before this suit was instituted and that it used it for all the purposes for which a street on, under and above the surface, is commonly used. The plaintiff knew of
The plaintiff, however, contends that a dedication, whether by deed, grant, plat or acts in pais must be and necessarily is of the whole right to the property, and that there is, and can be, no dedication in this case because the plaintiff and its predecessors have always used it as a part of - its right of way. This contention is untenable. It was, and is, clearly within the power of a city to lay out, establish, condemn or acquire a street to cross a right of way of an existing railroad company. The street thus acquired is subject to the paramount right'of the existing railroad company, but the two uses of the land for, first, a railroad right of way, and second, for street purposes, are consistent, compatible and legal uses . [Railroad v. Chicago, 166 U. S. 233; Railroad v. Gordon, 157 Mo. l. c. 77.]
This is necessarily.true, for otherwise a street could never be projected across a railroad, nor could the city acquire the right of way to have a street cross a railroad even though it sought to do so by condemnation. Tet section 4 of article 12 of the Constitution expressly reserves the power and right of eminent domain in such cases, and authorizes a proceeding by a city to condemn the right to construct and maintain a street across the right of way of an existing railroad. In fact the plaintiff concedes the city could have acquired such a right in this case if it had proceeded by condemnation. If it had proceeded by condemnation, it would have acquired only the same right it did acquire by a dedication, by the plaintiff, by acts in pais. Such a dedication did not in any manner impair the plain
The plaintiff, however, contends that under the decision of this court in Railroad v. Totman, 149 Mo. 657, title to railroad property can never be acquired by adverse possession under the statutes of this State where such possession began since the taking effect of the General Statutes of 1865. That case held that a railroad right of way constituted property devoted to a public use, and, therefore, the statute of limitations did not run against the railroad and in favor of one who had taken possession of a portion thereof. In other words, that such a possession, under our statutes, does not constitute adverse possession and can never ripen into a title by limitation. The conclusion, reached in that case met with the approval of this division of this court, and nothing has appeared since to cause the court to change the conclusion then announced. But the doctrine there announced in no manner determines the question here involved. The question here is, not whether the city acquired title by limitation, but whether the plaintiff and its predecessors dedicated the thirty-foot strip, aforesaid, to public use as a street, by acts in pais. A dedication by acts in pais may be a perfectly valid dedication, although the city has not been in the possession and enjoyment thereof for a period of time necessary to constitute title by limitation. In other words, the two legal propositions depend upon totally different principles. The conclusion is irresistible that the plaintiff and its predecessors. dedicated that portion of its thirty-foot strip, lying within the limits of Hamilton avenue, to public use as a street, subject to its right to maintain and operate its railroad thereon. Being dedicated as a public street it passed at once to the control of the public authorities for all purposes for which any pub-
II.
The next question in this case is, whether Hamilton avenue being a public street, the city of St. Louis had a right to authorize the defendants to construct and maintain street car tracks on the same.
The plaintiff contends that the question of the necessity for the acquisition of a right of way for a railroad is a judicial question, and must be decided by the courts, and is beyond the power of a municipality or of the Legislature to determine. In the abstract, where a railroad company seeks to condemn private property for a railroad right of way, the use to which it is to be devoted is a judicial question. But this rule of law is not determinative in this case, for the defendants are not seeking to condemn plaintiff’s property for a right of way, but are claiming a right to run over the streets by virtue of an ordinance duly enacted by the city of St. Louis authorizing them to do so.
Given the premise that Hamilton avenue is a public street, it follows that the defendants could not condemn a right of way over the same, for section 20 of article 12 of the Constitution expressly reserves to a city, town or village the right 'to say whether or not a street railroad shall be operated on any of its streets. Street railroads constitute a legitimate use of a public street. [Julia Building Assn. v. Bell Telephone Co., 88 Mo. 258.] Such railroads are simply another method of transporting citizens over the streets, and it has been held that they may not only be legally authorized on the street, but that their presence thereon does not constitute an additional servitude.
The infirmity of the plaintiff’s whole contention upon this branch of the case consists in its failure to differentiate between an ordinary acquisition of a right of way over private property by means of the
The judgment of the circuit court is right and is affirmed.