Kansas City, St. Joseph & Council Bluffs Railroad Co. v. St. Joseph Terminal Railroad Co.
| Decision Date | 04 February 1889 |
| Citation | 10 S.W. 826,97 Mo. 457 |
| Parties | The Kansas City, St. Joseph & Council Bluffs Railroad Company v. The St. Joseph Terminal Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.
Reversed.
Ramey & Brown for appellant.
(1) The constitution and laws of this state give to any railroad corporation the absolute and unqualified right to construct and operate a railroad between any points within this state and to cross any other railroad. Const. Mo., art. 12, sec 13; R. S., 1879, sec. 819. All railroads in this state are public highways. Const. Mo., art. 12, sec. 14. (2) And railroad companies have the right, subject only to the consent of the local authorities, to construct their roads across, along, or upon any street. This constitutes one of the public uses contemplated in the dedication or condemnation of the street, and it makes no difference as to the rights of the public in this respect, whether the fee of the street is in the public, or in the adjoining owner or original proprietor, nor whether the easement has been acquired by voluntary conveyance or dedication, or by condemnation. R. S., 1879, sec. 765; Julia Building Ass'n v. Bell Tel. Co., 88 Mo. 258, and cas. cit. And every street dedicated or condemned under the laws of this state since December 13, 1855, has been so dedicated or condemned under an express statutory provision subjecting it to this use. R. S., 1855, p. 425, sec. 29. (3) However exclusive or inviolable the rights of a railroad company may be in the property acquired by it to be used for the purposes of its incorporation, it has no exclusive privilege in the simple right to travel, with its vehicles, across the state. It must exercise this right in common with all others having the same right, and the fact that it is necessarily obstructed in its passage by the passage of another in the exercise of the same right, does it no legal injury, and entitles it to no compensation. Railroad v Railroad, 30 Ohio St. 604; B. & W. Railroad v. Railroad, 12 Cush. 605; M. C. Railroad v. Railroad, 121 Mass. 124; Julia Building Ass'n v. Bell Tel. Co., 88 Mo. 270. (4) The right to cross is equal, and does not arise out of purchase. When the younger corporation has acquired its property right at the point of crossing, both companies stand on an equal footing, bound by mutual obligations to each other and to the public, to so use the common right as to do no unnecessary harm to each other, or to the public. Railroad v. Railroad, supra. (5) A railroad company has no such vested right, even in its right of way at the point of crossing, as will prevent the legislature from appropriating an easement across it for another public highway without compensation. Railroad v. Brownell, 24 N.Y. 345; Railroad v. Greenbush, 52 N.Y. 510. (6) And the legislature may even compel the railroad company, without compensation, to build and maintain all that portion of a highway laid across it as lies within its right of way. Railroad v. Commissioners, 79 Me. 363. (7) And may compel the older railroad company to pay its proportion of cost of crossing and connections made in its tracks, against its will, by a new company. Railroad v. Railroad, 4 Allen, 198, and statutes and cases cited. (8) A railroad company has no right to make the exclusive use of a street which its own convenience requires. It can only pass and re-pass on it to a reasonable extent and in a reasonable manner, without encroaching upon the rights of others who have an equal right to use it. Gahogan's Adm'x v. Railroad, 1 Allen, 187-190. (9) The railroad company cannot use the street as part of its freightyard. (10) The rights of the public in a highway are paramount to those of the railroad company for all other purposes than that of transit. 2 Redf. on Railways (4 Ed.) 373; State v. Railroad, 25 N. J. L. 437; State v. Railroad, 27 Vt. 103.
Geo. W. McCrary also for appellant.
(1) Appellant, having been duly authorized by a valid ordinance of the city of St. Joseph, passed in pursuance of the constitution and statutes of Missouri, to lay its track in Fourth street it will not be enjoined from so doing. High on Injunctions (2 Ed.) secs. 637, 767, and cases cited in notes 3 and 4 to sec. 767; Railroad v. O'Daly, 12 Ind. 551; Parratt v. Railroad, 10 Ohio St. 624; Railroad v. Heisel, 38 Mich. 62; Railroad v. Domke, 17 P. 777, 781; Bellinger v. Railroad, 23 N.Y. 42; Mfg. Co. v. City, 116 Mass. 458; Hovelman v. Railroad, 79 Mo. 632; Randal v. Railroad, 65 Mo. 333; Cross v. Railroad, 77 Mo. 318; Rude v. City, 93 Mo. 408; Tate v. Railroad, 64 Mo. 158; Radcliffe's Ex'rs. v. Mayor, 4 Comst. (N. Y.) 195. (2) The damages claimed as shown by the bill and the evidence are wholly consequential and therefore cannot be recovered, and constitute no ground for an injunction. Railroad v. Railroad, 30 Ohio St. 604; Railroad v. Railroad, 66 Mass. 605; Railroad v. Railroad, 121 Mass. 124; Pierce on Railroads, p. 197, and numerous cases cited. Kellinger v. Railroad, 50 N.Y. 206. (3) And this must of course be the rule where the crossing is in a public street of a city and authorized by state constitution and statute and by municipal ordinance. Const. of Mo. art. 12, secs. 13, 14; R. S., 1879, secs. 765, 819; R. S. 1855, sec. 29, p. 425; Julia Bld'g Ass'n v. Bell Tel. Co., 88 Mo. 258, and cas. cit. (4) The constitutional provision, "that private property shall not be taken or damaged for public use without just compensation," does not entitle respondent to relief by injunction in this case. Stetson v. Railroad, 75 Ill. 74; Patterson v. Railroad, 75 Ill. 588; Railroad v. Schurz, 84 Ill. 135; Protzman v. Railroad, 9 Ind. 467; Railroad v. McAhren, 12 Ind. 552; Railroad v. O'Daley, 3 Ind. 353; Railroad v. Reinhackle, 15 Neb. 279; S. C. 18 N.W. 69; Osborn v. Railroad, 5 Blatch. 366; Currier v. Railroad, 6 Blatch. 487; Lorie v. Railroad, 32 F. 270; Railroad v. Domke, 17 P. 777.
W. B. D. Motter also for appellant.
(1) The decree condemning land for an extension of Fourth street in St. Joseph, set out in the record, does not, either by its express terms or by necessary implication, purport to deprive the city of the power to authorize a railroad track to be laid along Fourth street, and across plaintiff's tracks. Plant v. Railroad, 10 Barb. 28. (2) The right of a railroad company to cross with its tracks a public street cannot be construed as giving exclusive privileges with respect to the right of transit over such street. Railroad v. Railroad, 66 Mass. 505.
Strong & Mosman for respondent.
(1) By the judgment in the case of the city of St. Joseph against respondent, read in evidence, the rights of the city and of the public were made subject to the existing use which respondent was making of the ground that the city sought to appropriate to its use; said judgment did not grant to respondent its rights, it merely recognized the rights respondent already had, and preserved them. (2) No matter how absolute and unqualified the right given to one railroad to cross another is, such right affords no justification of appellant in this case. Instead of crossing a single track appellant intends and was about to cross six tracks belonging to respondent, in active use for yard purposes. (3) The statutes of this state do not allow a crossing under such a state of circumstances as are shown in the case at bar. R. S., 1879, sec. 819; Pittsburg v. S.W. Co., 77 Pa. St. 196. (4) Private property shall not be taken or damaged for a public use without just compensation. Const. art. 2, sec. 21.
This is an appeal from the decree of the circuit court of Buchanan county enjoining the defendant from entering upon, or interfering with plaintiff's several railroad tracks as now constructed and operated on, over and across Fourth street in the city of St. Joseph.
The defendant, at the time of the filing of the petition, was engaged in constructing its track on Fourth street, was approaching the tracks of plaintiff, and purposed crossing them, claiming the right to do so by virtue of an ordinance of the city of St. Joseph duly passed and approved January 7, 1887, granting it "the privilege of laying down, constructing, using and maintaining forever along Fourth street a single railroad track from the south line of Sacramento street to the north line of Lafayette street."
The accompanying map or diagram represents the relative situation of the grounds of the contestants, the tracks of plaintiff as established and operated, and the points of their crossing by the proposed track of the defendant, the plaintiff's tracks are in yellow, and the defendant's in red.
It will be observed from the map, that the defendant proposes to cross six of the plaintiff's tracks on Fourth street that at the points of crossing, the plaintiff is the owner of the property abutting said street on each side thereof. Prior to September, 1878, the plaintiff was the absolute owner also of the strip of ground between its said abutting premises designated on the map as Fourth street, with its several tracks as located thereon, and was operating the said several tracks in its business as a common carrier of passengers and freight in connection with its tracks on its adjoining property of which the street then formed a part. At the September term, 1878, of the circuit court of Buchanan county, in a proceeding instituted by the city of St. Joseph against the [SEE ILLUSTRATION IN ORIGINAL] plaintiff herein to condemn property for the extension of Fourth street in said city, brought to said court, by appeal from the mayor's court, the following decree was rendered, and...
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