86 Mo. 13 | Mo. | 1885
— The relators, judges of the county court of Clay county, and the road overseers, sued out an alternative writ of mandamus, requiring the respondent to so construct its road, where it passes along a specified portion of a public highway, as hot to prevent the public from using the highway, or show cause, etc. Upon a trial of the cause, upon an agreed statement of facts, the peremptory writ was denied. Respondent has failed to file any abstract or brief, and we shall look to appellant’s abstract as a full and true statement of the case.
The Kansas City, Galveston & Lake Superior Railroad Company was created under a special act passed in 1857; subsequently, its name was changed to the Kansas City & Cameron Railroad Company; and, still later, that corporation was consolidated with the respondent, The Hannibal & St. Joseph Railroad Company. In 1848; the county court of Clay county established a public highway through a part of that county, and along the foot of the Randolph Bluffs, upon a narrow space of level land. From thenceforward this road was used as a public thoroughfare. Long subsequent thereto the railroad company procured a right of way from the owners of the land, and, in 1867; the railroad constructed its road close to the river, using for that purpose a part of the public road. This rendered the public road more or less unsafe, but it was still continuously and largely used as a public road until 1879. In that year the St. Louis, Kansas City & Northern Railroad Company, claiming a track under certain proceedings to condemn a part of the
The eleventh section of ' the charter of the Kansas City, Galveston & Lake Superior Railroad Comp any provides : “ Said company may build said road along or across any state or county road * * * but where-ever said railroad shall cross any state or county road, said company shall keep good and sufficient cross-ways, or adequate facilities for crossing the same; and said railroad shall not be so constructed as to prevent the public from using any street, road or highway along or across which it may pass.” This statute is clear and explicit. The duty to so construct the railroad as not to prevent the public from using the highway is a continuing one. This duty to so construct the road would be so without the statute. Nothing but express statute will relieve the company from the duty of restoring the public road, which it crosses, to its former usefulness. People v. C. & A. Ry. Co., 67 Ill. 118.
Mandamus is an appropriate and proper remedy to compel the restoration of a highway to its former state, and, in this respect, to require the corporation to perform its charter duties. High on Ex. Legal Rem., sec. 320 ; 2 Rorer on Railroads, 934. The question here is one of public right, and the better opinion is that it is sufficient for the relators in such cases to show that they are citizens, and thus interested in the performance of a
We do not see how the act of the St. Louis, Kansas City & Northern Railroad Company, in taking up the road-bed of the respondent and placing it in the public road can justify the latter in letting it remain there, and continuing the use thereof, so as to entirely obstruct the travel. It may be that this act of the St. Louis, Kansas City & Northern Railroad Company was in disregard of respondent1 s rights, but that cannot justify the continuance and use of the obstruction to the entire exclusion of the public. What the rights were, or are, as between
On the agreed facts there should have been awarded a peremptory writ.
. The judgment is reversed and the cause remanded, with instructions to the circuit court to issue a peremptory writ.