Dubach v. Hannibal & St. Joseph Railroad Co.

• Decision Date: 07 June 1886
• Citation: 1 S.W. 86,89 Mo. 483
• Parties: Dubach et al. v. The Hannibal & St. Joseph Railroad Company et al., Appellants
• Court: Missouri Supreme Court

1 S.W. 86

89 Mo. 483

Dubach et al. v. The Hannibal & St. Joseph Railroad Company et al., Appellants

Supreme Court of Missouri

June 7, 1886

Appeal from Hannibal Court of Common Pleas. -- Hon. Theodore Brace Judge.

Affirmed.

G. W Easley for appellants.

The bill does not seek to restrain an improper use of the side track after the same shall be moved northward, but its theory is, that because an improper use of the side track has heretofore been made, that, therefore, the removal of the side track northward would constitute a nuisance. If the side track is authorized by law, it is a legal structure and not a nuisance. If it is used improperly, the structure does not thereby become unlawful; its improper use is the only thing illegal and all that could be abated or restrained. All structures placed in streets or over navigable waters are only illegal or unlawful in so far as they depart from the requirements of the act under which they were erected, and are a nuisance subject to abatement or restraint only so far as they depart from, or exceed, the requirements of the authority under which erected. Wood on Nuisances, sec. 302; Rennick v. Morris, 3 Hill, 623. The street is a public highway open to the lawful use of all, and the defendant has by law been authorized to place such structures in the street as will enable it to pass its cars to and fro over the same. Without "exercising a too exclusive or unreasonable use or position * * * to the injury of other persons, the law affords an adequate remedy in damages." But a court of chancery cannot undertake to regulate how a river shall be navigated, or a street traveled. Hermann v. Beef Slaugh. Co., 8 Bissell, 348, 349. The plaintiff having an adequate remedy at law cannot invoke the aid of a court of equity by injunction. "Where the defendant is solvent, and the damages are susceptible of adjustment and compensation, there is no necessity for appealing to the interposition of a court of equity by injunction." The statute giving the authority to lay the road in the street required that it should be so constructed "as not to hinder or prevent the public from using the same." If the track was so laid as to hinder or prevent the public from using the same, any one specially damaged thereby might recover damages, or might require the railway company, by mandamus, to put the street in proper condition. The facts alleged and proven in this case constitute an injury that is common to the whole public, and not showing a special injury to the plaintiffs, they can neither recover in an action for damages, nor sustain an injunction.

Thomas H. Bacon for respondents.

(1) The process of shifting the side track was properly enjoined. Wood on Nuisances, secs. 618, 647, 670, and 830; Brakken v. Railroad, 7 Am. & Eng. Railroad Cases, 593. (2) When the construction of a railroad in a street of a city will work material injury to the abutting property, such construction may be enjoined at the suit of the owners, until the right to construct such road in the street shall first be acquired. Scioto v. Lawrence, 7 Am. & Eng. R. R. Cases, 93; Story v. Railroad, 7 Am. & Eng. R. R. Cases, 596; High on Injunctions [1 Ed.] 224, 228, 229, 230, 231. (3) The fact that the government has given a railway company the privilege of operating its railroad on a public street will not authorize such a use or appropriation of the street as to damage private property. "Any person injuriously affected by a nuisance, who could maintain an action at law therefor, can maintain a bill in equity for an injunction." Wood on Nuisances, p. 835, sec. 783. Injunctions are favored by the courts. Overall v. Ruenzi, 67 Mo. 203. (4) The appellant was properly enjoined from shifting the side track northward. The bill of rights (Const. 1875, art. 2, sec. 21), says that "private property shall not be taken or damaged for public use without just compensation," etc. The imposition of a railway side track on a common law highway is a taking of the abutting owner's land. The law under which respondents, and not appellants, may be made solely liable for the expenses of the betterment of the street for purposes of ordinary travel (Farrar v. St. Louis, 80 Mo. 376), should give respondents an actionable interest in respect of the obstruction of such ordinary travel. Even under the constitution of 1821, the railroad companies obtained no right to render a street comparatively useless. Lackland v. Railroad, 31 Mo. 180; Thurston v. St. Joseph, 61 Mo. 517; Cape Girardeau v. Renfroe, 58 Mo. 268; Tate v. Missouri, 64 Mo. 155; Swenson v. Lexington, 69 Mo. 155; Kinealy v. St. Louis, 69 Mo. 666; Hannibal Bridge v. Schaubacher, 57 Mo. 582, 585. (5) Without respondents' consent, the city of Hannibal had no power to authorize the shifting of said side track. Municipal consent required a municipal ordinance (City Charter, art. 1, sec. 6; Laws 1873, 239), and a mere resolution was insufficient. Stewart v. Clinton, 79 Mo. 603, and 610, upper half. And this resolution is not shown to have been signed by the mayor. Ib.; Lewis v. St. Louis, 69 Mo. 595, 600; Graham v. Carondelet, 33 Mo. 262; Carondelet v. Woolfeet, 39 Mo. 312; Saxton v. St. Joseph, 50 Mo. 488; S. C., 60 Mo. 183; Thompson v. Brownsville, 61 Mo. 282; Louisiana v. Miller, 66 Mo. 467. Besides, the resolution did not grant the authority. It offered to agree with appellant, but there is no pretense that appellants agreed to the stipulations.

OPINION

Henry, C. J.

By amendment to the charter of the Hannibal & St. Joe Railroad Company, approved March 3, 1855, the company was authorized to build its road over streets, alleys, and wharves in any town or village, corporate or not; but required the company so to construct the road, "as not to hinder or prevent the public from using the same." Collier street in the city of Hannibal was dedicated as a street and the railroad company laid down its track on that street. Prior to the laying of the track in the street there were buildings on either side of the street, but it was graded by the...