69 Mo. 65 | Mo. | 1878
This was a suit brought by the plaintiff’ on the 21st day of July, 1874, to enjoin the defendant from constructing a street railway over that portion of Ninth street, in the city of St. Louis, lying between Hempstead street and North Spring street, on the ground that the construction and operation of a railroad thereon would be an encroachment upon and interference with the exclusive rights and privileges of the plaintiff’. Ninth street, between the points named, is the street next adjacent to Broadway along which plaintiff’s road has been constructed, and is parallel thereto.
The plaintiff was organized as a corporation in the year 1859, under the act of the General Assembly entitled “An act to authorize the formation of railro'ad associations and to regulate the same,” approved December 13.th, 1855, for the purpose of constructing, operating and maintaining a railroad for the conveyance of persons and property, to be worked by horse power only, from Bellefontaine cemetery to the southern boundary of the city of St. Louis. In the year 1859, the plaintiff’ was, by sundry ordinances, authorized to construct and operate its road from the north - eru limits of the city down the Bellefontaine road and Broadway to O’Eallon street, thence south along Eifth street with double track to such street between Market and Myrtle streets, as said company should select, and thence to the southern boundary line of the city, and in the years 1859 and 1860, completed, and has ever since maintained and operated the same as now located.
On January 16th,, 1860, an act was passed by the General Assembly, the first section of which is as follows :
Section three is as follows : Section 3. No street railroad shall hereafter be constructed in the city of St. Louis nearer to a parallel road than the third parallel street from any road now constructed, or which may hereafter be constructed, except the roads hereinbefore mentioued; and in consideration of the privileges herein granted, the city of St. Louis is hereby expressly empowered to impose' and levy such tax and license upon said roads now constructed or that may hereafter be constructed, as the common council of said city- may determine to be just and proper ; and the said city may make such municipal regulations concerning said street railroads as the public interests and convenience may require, except to reduce the rate of fare charged by said companies as now fixed by ordinance of the city of St. Louis.
On the 12th day of June, 1874, the Northwestern St. Louis Railway Company organized as a corporation under the general law concerning manufacturing and business
The only question of importance presented by the record is as to the proper construction of the following paragraph of section three of the act of 1860 : “ No street railroad shall hereafter be constructed in the city of St. Louis nearer to a parallel road than the third parallel street from any road now constructed, or which may hereafter be constructed, except the roads hereinbefore mentioned.” It was conceded at the argument that at the time of the passage of the act aforesaid, the Peoples’ railway had uot been constructed.' The plaintiff’s road was constructed in 1859 and 1860, and as the act in question was passed on the 16th clay of January, 1860, it is quite probable that the plaintiff’s road was not then entirely completed. The precise date of its completion is not given. The track of the St. Louis railroad ran along Fifth street for a long distance in the central portion of the city, and the track of the Peoples’ railroad ran along Fourth street in the same portion of the city for a considerable distance, and then ran west on Chouteau avenue. Fourth street is the next parallel street to Fifth street.
In construing the paragraph above quoted the circuit court held that the plaintiff would be protected thereby from the encroachment threatened by the defendant, if the defendant’s road could be considered as a parallel road; but as the general direction of the plaintiff’s road was from north to south, and that of defendant from northwest to southeast, with a distance of only half a mile over which the parallel track was to be laid, that portion of the road on Ninth street, the construction of which was sought to be enjoined, was not such an encroachment as the statute intended to forbid.
We cannot concur in this construction of the statute. Nor do we believe that it was the purpose of the act to confer upon the companies named therein the right to thereafter construct their roads within three blocks of other parallel roads. The section contains a general prohibition against the construction of parallel roads within certain designated distances of each other, but, as the tracks of two of the roads named, one of which certainly had not been constructed, were within such proximity as was prohibited by the act, and as by a previous section of the same act they were confirmed in the rights and ’ privileges granted them by the city, it became necessary and proper to except them from the general prohibition, and this, we think, was the whole purpose of the exception. Such of the roads named in the act as were parallel to each other were confirmed in the privileges granted them before the passage of the act and were permitted to be constructed within three blocks
If this construction be correct, it necessarily follows that the Peoples’ road and the plaintiff’s road are parallel, roads within the meaning of the third section, inasmuch as they are excepted from the prohibition contained in the act because of their parallelism ; and they are so parallel, notwithstanding the fact that a portion of the Peoples’ line runs at right angles with the plaintiff’s line, and the further fact that their general direction is not the same. And these facts furnish us a safe guide to the true meaning of the words “ parallel road ’’ employed in the third section. They certainly demonstrate that the relative location of the termini of the plaintiff’s and defendant’s roads can by no means be regarded as a controlling circumstance in determining whether such l’oads are parallel roads within the meaning of the act, and this may be shown also by illustration. Suppose, for instance, the plaintiff’s road runs due north and south along the eastern boundary of the city, and that defendant’s road should begin at the northwest corner of the city and run due east to the plaintiff’s road, and then due south on the street next adjacent to the one occupied by the plaintiff’s road until it reached the southern limits of the city, and should then run due west and at right angles with the plaintiff’s road to the southwest corner of the city limits, although the termini of the respective roads would be miles apart, could it be contended in such case that there was no invasion or impairment of the qualified exemption from competition bestowed upon
It is further objected that the plaintiff failed to show by proof that any injury would result to it by the building 2. injunction. of the defendant’s road on Ninth street between Hempstead and Spring streets, or that such injury, if any should be sustained, could not be compensated in damages. On this subject, we cannot do better than to quote the language of Lowrie, J., in the case of the Commonwealth v. Pittsburgh & Connellsville R. R. Co., 24 Pa. St. 160: “ The argument that there is no ‘ irreparable damage’ would notbe so often us.ed by wrong-doers if they would take the trouble to observe that the word ‘irreparable’ is a very unhappily chosen one, used in expressing the rule that an injunction may issue to prevent wrongs of a repeated and continuing character, or which occasion damages which are estimable only by conjecture and not by any accurate standard. 3 Railway C. 106, 345; 4 Id. 186; 1 Sim. & S.
The judgment of the court of appeals, and that of the circuit court-are reversed and the cause is remanded to,the 'circuit court, with directions to enter a decree as prayed by the plaintiff.
Reversed.