61 Mo. App. 357 | Mo. Ct. App. | 1895
—The trial court, upon the hearing of this cause, granted to plaintiff a. perpetual injunction, restraining the defendant from closing a road crossing which the plaintiff had constructed over the defendant’s tracks and right of way. The defendant appeals from the decree, and claims that it is unwarranted by the pleadings and evidence. There is very little controversy touching the essential facts which were developed by the testimony, and, as this is a proceeding in equity in which we are required to find the facts ourselves, we will proceed to state them as follows:
The defendant, in 1854, acquired from one Maupin its right of way through the land it crosses at the places hereinafter mentioned. Maupin, in his deed to
The first question which arises is the construction to be put upon the provisions of section 2611. That part of the section, which bears upon the present inquiry, is as follows:
“Every railroad corporation * * * shall erect and maintain lawful fences, * * * with openings and gates therein, * * * at all necessary farm crossings of the road, for the use of the proprietors or owners * * * adjoining such railroad. If any corporation aforesaid shall, after three months from the time of the completion of its road through or along the lands, * * * fail, neglect or refuse to erect or maintain in good condition any fence, opening or farm crossings, * * * then the owners or proprietors of said lands * * * may erect or repair such * * * farm crossings,” etc.
The plaintiff contends that he is an adjoining owner within the provisions of this section, and, as such, is entitled to a necessary farm crossing as a matter of right. The defendant contends that the word adjoining has reference to the fencing, and that the word farm crossing has reference to a crossing from one part of a farm to another part of the same farm, and applies when a farm is bisected by the location of a railroad. We think the latter construction is the correct one. The statute, as far as crossings are concerned, contemplates a condition brought about by the construction of the railroad, and not one arising by the
We do not lay any stress upon the fact that the plaintiff’s right in land on the south side of the railroad consists in a mere right of way. A right of way is sufficient to make the plaintiff an adjoining owner. Lakenan v. Railroad, 36 Mo. App. 363. The plaintiff would be in no better position, if, instead of buying the right of way in 1892, he had bought an adjoining farm on the south side of the railroad. Our attention has been called to no case, and we> have been able to find none, where the railroad’s duty to make farm crossings was made dependent on changes in ownership taking place subsequent to the construction of the road. Section 2609 of the Revised Statutes provides for the construction of crossings on public «streets or roads now or hereafter to be opened for public use, but there is no provision in section 2611 having reference to a future condition of things brought about without the railroad company’s interference.
A question somewhat analogous arose in People v. Railroad, 42 American and English Railroad Cases, 257, touching a residence crossing act, which was held to be unconstitutional. The court, arguendo, said: “If plaintiff’s) contention be correct, then a landowner across whose land a railroad has been constructed, and who has been amply compensated in damages, may
The weight of the¡ testimony in this case is that the place where the plaintiff constructed the new crossing is best adapted for that purpose, and that a crossing at that place can be made with safety to the traveling public. There is no reason why the plaintiff can not have a right of way condemned at that place, giving- him commodious access to the public road. That is the plaintiff’s proper proceeding.
The judgment is reversed, and the cause remanded with direction» to dissolve the injunction and dismiss the bill.