206 Mo. 251 | Mo. | 1907
Relators are citizens and tax-payers of the city of Excelsior Springs, a city of the fourth class in Clay county, Missouri. The action is one of mandamus, instituted May 8, 1903, to compel defendant, the owner and operator of a line of railroad in and upon Dunbar avenue, a public street of said city, “to restore said Dunbar avenue to as good condition as it was before its tracks were laid thereon, or to such condition as not to unnecessarily impair its usefulness and for such other orders and judgments in the premises as may be just.” The basis of the action is section 1035, Revised Statutes 1899. The part peculiarity applicable to a railroad corporation which constructs and maintains its road in a public street, is as follows:
Excelsior Springs was incorporated as a city of the fourth class in 1881, and at the institution of the present action had a population of twenty-five hundred inhabitants. Under the evidence it is purely a health and pleasure resort, and is visited by people from all sections of the country. Forest Park, an addition to said city, was platted in 1887, and St. Paul, an addition which lies north of Forest Park, was platted in 1889. Both additions were laid out and platted by the Excelsior Springs Company, a corporation. The streets, avenues and alleys were dedicated to the public. Dunbar avenue runs through these additions or a portion thereof. The dedication of the streets, avenues and alleys in Forest Park contained a reservation, in this language: “All streets, avenues and alleys as represented on the above plat are hereby dedicated to public use forever, saving and except, however, the exclusive right of way for street railways, which right of way is hereby expressly reserved by and to the undersigned proprietor, its successors, and assigns.”
The course of Dunbar avenue is from south to north, but by irregular meand'erings and curves. Its southern end is a street called Concourse and its northern termination is at Kimball avenue.
Dunbar avenue was graded and made a roadway by the Excelsior Springs Company prior to the platting of the additions. The city paid no part of the cost thereof. In 1886, the Chicago, Milwaukee & St.
The defendant in this case became the Owner of the property of the Excelsior Springs Eailroad Company, sometime between 1896 and 1901, not clear to us from the record, and has greatly improved the conditions both as to the roadbed and the accommodations,, but has in no wise changed the grade of the roadbed in Dunbar avenue. Prom the evidence it appears that a great many passengers and quite a quantity of freight are annually hauled over this mile of track between the two depots. It also appears that with the exception of a few property-owners in Forest Park, who wanted damages, there was no objection to the construction of this railroad in 1891, and that this defendant knew of no objections at the time of its purchase and learned of none until about the time of the institution of this suit, although it was improving the property and had expended on the whole line (ten miles) some thirty thousand dollars. Since the construction of this mile of railroad, in the course of which a bridge was necessary at one place, it is conclusively shown, Dunbar avenue has been in a condition wholly
Judgment was for relators in this language r “Whereupon, it is by the court considered and adjudged that a writ of peremptory mandamus be issued to said respondent, directing, said Wabash Railroad Company to restore Dunbar avenue mentioned in the petition herein, to as good condition as it was before its. tracks were laid thereon, or to such-condition as not to, unnecessarily impair its usefulness; and that said relators recover of respondent their costs and charges in this behalf expended and have thereof execution. ’?
Being unsuccessful in its motion for new trial, defendant duly perfected its appeal to this court.
I. Relators are citizens and taxpayers of the city of Excelsior Springs, so alleged to be in the petition for the writ of mandamus and as shown by the evidence. The alleged failure of the defendant is a failure to perform a duty which it owed to the public. Whatever may be the rule elsewhere, it- is well established in this State that they are proper parties to bring and maintain this action. [State ex rel. v. School Board, 131 Mo. l. c. 514; State ex rel. v. Railroad, 86 Mo. 13; State ex rel. v. Francis, 95 Mo. 44.] This proposition, however, does not seem to be seriously disputed by defendant.
Further, upon the one hand, Dunbar avenue, as a public street, is practically destroyed, and upon ¡the other it is impracticable to maintain the railroad and
Defendant contends that, inasmuch as the State by this section has granted railroad corporations the right to construct their roads upon and over streets and highways, the subsequent part of the clause quoted, requiring them to restore the street or highway, is a condition subsequent, and if that condition is impossible, then it is void. Learned counsel in discussing this clause, put their contention in this language: “The clause copied has a grant and a condition. There could be no such thing as restoration until after construction. The condition, therefore, annexed to the grant, is a condition subsequent. It is therefore, a void condition, because it is impossible. By all of the authorities, an impossible, subsequent condition is void, and the right passes, uncontrolled, under the grant.”
They then insist upon a liberal construction of the statute. If it were a question of first expression in this State, as counsel seem to insist, then a closer scrutiny of the law might be required. But our court has heretofore considered this question, and whilst the cases wherein it was considered do not possess the har-shness of the case at bar, we can see no reason from departing from our former rulings, and thereby overrating a line of cases, and we accordingly adhere to the doctrine of these cases, which cases are as follows:' State ex rel. v. Railroad, 86 Mo. 13; Dubach v. Railroad, 89 Mo. 483; Brown v. Railroad, 137 Mo. 529; State ex rel. v. Murphy, 134 Mo. l. c. 562; Knapp, Stout & Co. v. Railroad, 126 Mo. l. c. 37; Corby v. Railroad, 150 Mo. 457, and cases therein cited and reviewed.
In the Dubach case, supra, this court, through Henry, C. J., said: “It is true that it is settled law
In discussing the section now under consideration in the Brown case, supra, we said’: “But the statute gives railroad corporations the right to construct and maintain their roads across and along the public streets of cities, the assent of the municipal authorities being first obtained (B. S. 1889’, sec. 2543), and cities of the second class, to which St. Joseph belongs, are authorized to direct and control the construction of railroads in their streets and alleys, and to require them to be so constructed and laid as to interfere as little as possible with ordinary travel and use. [B. S. 1889, sec. 1255, sub-div. 26.] The exercise of the rights and powers thus conferred has received the approval of this court in many cases. [Knapp, Stout & Co. v. Railroad, 126 Mo. 35; Lockwood v. Railroad, 122 Mo. 88, and cases cited in each.] It is true the power of municipal authorities to grant to a railroad company the right to lay its tracks along the street of the city is not absolute. They cannot do so if the operation of the railroad will destroy the use of the street as a pub-
■ In the Murphy case, supra, we said; “The power to' regulate the use of streets refers to legitimate public uses not inconsistent with the ordinary and paramount use for travel thereon, or with the private rights of abutting property-owners. An ordinance having the effect of diverting the streets from a public to a private use, or of unreasonably appropriating them •to a public use other than that of ordinary travel by pedestrians and vehicles, is ultra vires and void.’ ’
Further, in the Knapp, Stout & Co. case, supra, after a review of the authorities, we said: “Taking these cases all in all, it is very clear a municipal corporation has no power to grant to a railroad com-. pany such use of a street as will destroy its usefulness as a public thoroughfare, or destroy or unreasonably interfere with the right of an abutting property-holder,. to access to and from his property. Though the city gave its assent to the construction of this railroad track, still the defendant was bound to construct and use the track with due regard to the rights of the public and adjacent property-owners. The defendant has no greater rights than others, for in the use of the street it is but one of the public, and must conduct and operate its track accordingly.”
We spoke thus, in the Corby case, 150 Mo. l. c. 469: “ The sum of it all is that the public cannot grant to any one exclusive rights in a public highway, nor can it authorize any one to use the whole or any part thereof in such a manner as to unreasonably interfere with its use by the other members of the public or with the right of access of the abutting owners to their property.”
So that we conclude that whilst the law permits a railroad to enter upon a public highway, it is a con
III. Prior to the ordinance of 1894, the railway company then operating the railroad in Dunbar avenue, was a trespasser and no more. No assent of the city had been obtained. After this ordinance it changed from a mere trespasser to a lawful occupant, provided it met the conditions prescribed by the law as found in section 1035, supra. This the original company never did, nor has its successor, the defendant, in this action. Defendant purchased with a knowledge of the requirements of the law, and with a knowledge of the then apparent conditions of the street. What money it has expended has been under these circumstances. It was bound, in law, to know that the city ■could not have granted its predecessor the exclusive use of this street. Nor do we think there are any serious elements of estoppel in the case. In fact, counsel have not urged the question. Upon reconsideration the defendant may find that it can comply with the judgment of the trial court, and so reconstruct its road and Dunbar avenue as to permit the use thereof, both by the public and itself. But, however this may be, the judgment is right, and it is therefore affirmed.