100 Mo. 419 | Mo. | 1890
The plaintiff, the St. Louis Transfer Railway Company, is a corporation organized under the laws of this state for the purpose of building and operating a transfer-railroad from the southern to the northern portion of the city of St. Louis. The proposed route, with two tracks, is, for the most part, along the public wharf of the city. The defendant has tracks and switches which are also located on the wharf. The plaintiff desired to join and unite with some of these tracks of the defendant, and to cross others, but was unable to come to any agreement with the defendant. Thereupon the plaintiff brought this suit to have commissioners appointed to ascertain the points and manner of making the crossings and intersections and to ascertain the compensation to be paid the defendant therefor. The suit or proceeding is founded on section 765 of the Revised Statutes of 1879, which provides that any railroad company shall have power “to cross, intersect, join and unite its railroad with any other railroad before constructed, at any point in its route, and upon the ground of such other railroad company,” etc.; “andif the two corporations cannot agree upon the amount of compensation to be made therefor, or the points and manner of such crossings and connections, the same shall be ascertained and determined by commissioners to be appointed by the court as is provided in this chapter for the condemnation of lands for railroad purposes.”
The defendant filed an answer, to-which there was a reply. Upon these pleadings the court heard evidence
A iike report is made in respect of the Almond street connection, and in respect of these two connections the commissioners say “ the latitude given to the positions of the crossings at Rutger and Almond streets is for the purpose of proper alignment of railroad frogs and lead bars placed in the common mode of crossings of parallel railroads with proper angles and length of lead best adapted to such crossings.”
The report concerning the award of damages, and the crossing and intersection of Trudeau street is as follows: “The' commissioners find that the railroad crossing to unite and intersect with tracks of the plaintiff’s railroad near Trudeau street, as described in the order of the court, should be placed on the public wharf between two hundred and fifty and three hundred feet south of the south line of Trudeau street produced eastwardly. This crossing applies only to the west
Numerous exceptions were filed' to this report, all of which were overruled and exceptions saved; but the record does not contain any of the evidence offered upon the hearing of the exceptions or at any other stage of the trial.
1. The report does not in terms state that the commissioners went upon and viewed the tracks'where the connections and crossings were to be made, and for this reason it is insisted the report should be set aside. It is the plain statutory duty of the commissioners to view the premises, but there is nothing in the law which requires them to recite that fact in their report. A failure on their part to conform to this requirement might be shown in support - of the exceptions made to the report. Here, however, none of the evidence is preserved, and there is, therefore, nothing to show that the court erred in overruling this exception.
2. The next objection is that the commissioners made no award of damages to defendant, their finding being in effect that defendant would not be damaged by the proposed connections and crossings. The circuit court has the power to hear evidence upon the question
3. A further objection is made to the report on the ground that it is indefinite in this, that it does not locate the points at which the crossings and intersections shall be made, and does not determine the manner of making them. We will consider first the Rutger street intersection. The eastern terminus of this street is upon the public wharf. Opposite the front of this street the defendant has one and the plaintiff two tracks, all running north and south along the wharf. As to this connection, the commissioners say it “should be placed within ten feet of either the north or south lines of the
The report contemplates that the connections and crossings shall, in their construction, conform to common usage in like cases, and we see no objection to it in this respect.
4. Finally as to the Trudeau street intersection. The pleadings admit that defendant has a side or switch track which comes in upon the wharf from the north of
The specific objection to this part of the report is that the commissioners were appointed to locate the crossings and intersections and nothing more; and, without authority, they dispose of two hundred and fifty feet of the defendant’s right of way and that too without compensation. The petition does allege that this sidetrack of the defendant was an obstruction to the public wharf and was unauthorized; but it goes on to say that the plaintiff’s projected road crosses and intersects it, and that the plaintiff had requested defendant to agree upon the point of intersection and upon the compensation to be paid defendant. The answer denies that the location of the switch was unauthorized. The court found that defendant had pai'tly constructed and was in possession of the switch or sidetrack, and that it was necessary for the plaintiff to cross and intersect the same. It is very clear from all this that the court did not find or adjudge that the location of this switch track by defendant was unauthorized. This is clear too from the fact that the court appointed the commissioners to determine the points and manner of the crossing and connection of plaintiff’s road with this side or switch track of defendant, and to ascertain the damages to the defendant arising therefrom. N o other power or authority was conferred upon them. Yet the report