State ex rel. Mahan v. St. Louis, Keokuk & Northwestern Railway Co., 86 Mo. 288

State ex rel. Mahan v. St. Louis, Keokuk & Northwestern Railway Co.

86 Mo. 288 | Mo. | 1885

Henry, C. J.

— The petition alleges substantially the incorporation of the Mississippi Valley Railroad Company and the Clarksville & Western Railway Company in 1871, and the incorporation, in 1873, of the Mississippi Valley & Western Railway Company, under the laws of this state, and the incorporation of the St. Louis, Keokuk & Northwestern Railway Company, in 1873, under and by virtue of the laws of the state of Iowa.

The consolidation of the two first named and other companies with the Mississippi Valley & Western Railway Company, and the acquisition by the latter of their franchises and subsequent acquisition by the defendant company of the franchises of the Mississippi Valley & Western Railway Company; that in September, 1872, the Mississippi Valley Railway Company, filed in the office of the clerk of the county court of *292Marion its location map and profile according to the statute, showing said railway, so located, as one hundred feet wide and with the road-bed and track thereon in the centre of said railway, the same being a route for a railway afterward adopted and used, as hereinafter dev scribed ; and that, on April 8, 1878, the defendant company filed in the office of said county clerk its map of the location of the road-bed of its road through Marion county, but without showing the width of its railway, and this plat showed the location to be the same as that shown by the plat filed by the Mississippi Yalley Railway Company in 1872. The petition then alleges-that there were in said county of Marion three roads which, for a period of forty years, had been and were used as public county roads, upon parts of which the defendant’s road was so constructed as to practically destroy them as public highways for ordinary travel, stating the particular manner in which this was done, which it is unnecessary to notice further than to say that the alleged obstructions sustain the general allegation.

It is further alleged that the' occupation, use and' enjoyment of said roads and adjoining grounds by the defendant was, and is, entirely without the assent of the county court of said county; and that, on the contrary, the said county court and county have often protested and do now protest against such usurpation. The prayer of the petition is for an injunction to restrain defendant from running its road and rolling-stock over said parts of said public roads and for general relief. A demurrer to the petition was sustained and from the judgment this appeal has been prosecuted.

The statute of 1865 authorized the construction of a railroad along or upon any public highway, but only with the consent of the county court. R. S., 1865, page 333, sec. 2. The petition alleges the filing of the plat or ■profile of its road by the defendant in April, 1878, and if there were nothing in the petition negativing the con*293sent of the county court,' it might be presumed from its long silence; but the petition expressly avers, and it is repeated, that neither the court nor the county ever consented to, but remonstrated against, the occupation of the county roads by the defendant for its road. Whether the consent of the county court was obtained or not is a question of fact, and so far from it appearing on the face of the petition that such consent was obtained, the contrary was expressly averred. If such consent was not obtained the defendant had no right to construct its road upon the county roads, and there had not been such a delay on the part of the county to assert its right as to have precluded it from doing so when this suit was instituted. This suit was instituted in January, 1882, and defendant’s profile of the road was filed in the county court in April, 1878, less than four years before the commencement of this suit. If the facts are as alleged in the petition, the plaintiff is entitled to some relief in equity. What it should be the court can determine on a hearing of the cause.

The judgment is reversed and the cause remanded.

All concur.