The State ex rel. Titus v. Wabash Railroad Company

• Decision Date: 13 July 1907
• Citation: 103 S.W. 1137,206 Mo. 251
• Parties: THE STATE ex rel. TITUS et al. v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

103 S.W. 1137

206 Mo. 251

THE STATE ex rel. TITUS et al. v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

July 13, 1907

Appeal from Clay Circuit Court. -- Hon. J. W. Alexander, Judge.

Affirmed.

J. L Minnis and D. C. Allen for appellant.

(1) It is a well-settled rule that the principles of interpretation and the rules of construction, are the same, whether the instrument be a constitution, a statute, a deed, a grant, a covenant or a contract. Story on the Const. (5 Ed.), secs 451, 401; Potter's Dwarris, pp. 47, 175, 182; End. Interp. Stats., secs. 1, 2, 8, 258, 295. In view of the authorities above cited, and all authorities on the interpretation of statutes, it is evident that the relators are altogether too narrow in their construction of section 2543, Revised Statutes 1889, and that they have excluded what must have been the intention of the legislators. The legislators could not have contemplated that their grant of power to the Excelsior Springs Railroad Co. to construct its road over and along the avenues, streets and highways of a city or town, should be a grant made in vain; but it must be assumed that the exercise of power granted the Excelsior Springs Railroad Co. drew after it all necessary consequences, and such consequences the law contemplated and sanctions. (2) Under the facts in this case, it is manifest that after the railroad track was laid on Dunbar avenue, that avenue could not have been, nor can it be now, restored to its former state, nor to such state as not unnecessarily to impair its usefulness, and under the authorities, such a consequence must have been within the intent and meaning of the statute. The necessity of the case drew with it all necessary consequences. It was necessary to impair the usefulness, -- for the public good, -- of Dunbar avenue, and it was not impaired unnecessarily. The clause 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. 2 Black. Com., 156; 2 Kent's Com., p. 146; Peyton v. Bury, 2 P. Wms. 626; Graydon v. Hicks, 2 Atk. 16; Cary v. Bertie, 2 Vernon 333, 2 Wash. Real Prop. (5 Ed.), sec. 6; 1 Shep. Touchstone (7 Ed), p. 133; End. Interp. Stats., sec. 441; Potter's Dwarris, p. 75; 1 Preston on Estates, p. 476. But the whole principle that impossible conditions are void in law is derived from the jurisprudence of the Romans. Its equity and justice have, therefore, appealed to, and been sustained by, all the legal thinkers of Europe and America. For instance: Gaius says: "An impossible condition, that the promisee, for instance, should touch the sky, makes the stipulation void, although a devise with an impossible condition, according to the authorities of my school, has the same effect as if the condition were not annexed. So, a stipulation to convey the promisee's property to the promisee, is null and void, for the conveyance is impossible." Poste's Gaius, book 3, secs. 98, 99, p. 380. Says Justinian: "An impossible condition in the institution of heirs, gift of legacies, creation of fidei commissa, and gifts of freedom, is considered not inserted at all." Sandars' Justinian, sec. 10, p. 269; and sec. 11, p. 427. The conclusion, therefore, is irresistible, that the condition of restoration annexed to the grant of right of way, in section 2543, Revised Statutes 1889, being impossible, in this case, is void.

Harris L. Moore and Sandusky & Sandusky for respondents.

(1) Under section 2543, Revised Statutes 1889, it was the duty of appellant to restore Dunbar avenue "to its former state, or to such state as not unnecessarily to have impaired its usefulness." R. S. 1889, sec. 2543. (2) The practice and law governing this class of cases is stated fully and clearly in State ex rel. v. Railroad, 86 Mo. 13; Dubach v. Railroad, 89 Mo. 483; State ex rel. v. Public Schools, 134 Mo. 304; State ex rel. v. School Board, 131 Mo. 514. (3) Relators were citizens and taxpayers of Excelsior Springs enforcing a public duty. State ex rel. v. Railroad, supra. (4) The judgment merely enjoins upon appellant its statutory duty. (5) "If the character of a street should be such that defendant's track could not be laid upon the street without hindering the public from using it, then no matter how important to the company that its track should be laid in that street, it could not be done, -- nor is it competent for a city to authorize such use of a street dedicated as a street as will destroy it as a thoroughfare for the public use." Dubach v. Railroad, 89 Mo. 488; State ex rel. v. Murphy, 134 Mo. 562; Brown v. Railroad, 137 Mo. 536; Corby v. Railroad, 150 Mo. 465.

OPINION

GRAVES, J.

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 peculiarly applicable to a railroad corporation which constructs and maintains its road in a public street, is as follows:

"Fourth, to construct its road across, along or upon any streams of water, watercourse, street, highway, plank road, turnpike or canal which the route of its road shall intersect or touch, but the company shall restore the stream, watercourse, street, highway, plank road and turnpike thus intersected or touched to its former state, or to such state as not unnecessarily to have impaired its usefulness."

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 meanderings 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. Paul railway was built to Excelsior Springs and its depot located about a mile from the city proper, the direction being west of north. This roadway, now Dunbar avenue, was constructed as a road to said depot. It followed the meanderings of the hill and was and is a very steep grade. The portion thus graded was twenty-five to thirty feet wide, but when platted as Dunbar avenue, it was given the uniform width of sixty feet. Prior to 1891, a corporation known as "The Excelsior Springs Railroad Co." was chartered to construct a standard gauge railroad from a point on the Wabash railroad three miles east of Missouri City, to Excelsior Springs, and through said city to a junction with the Chicago, Milwaukee & St. Paul railroad. This company first built its line south to the Wabash railroad and established its depot near the south end of Dunbar avenue. In 1891, it built, from its depot in Excelsior Springs, its road over and through Dunbar avenue and other streets and avenues, a distance of a mile, to the Chicago, Milwaukee & St. Paul depot. In doing so the ties were placed in the ground and the rails spiked thereto. Spaces between the ties were filled in with dirt, rock and gravel, so that to this extent the railroad is above the grade of the street. Owing to the steep grade and contour of the street, the railroad of necessity curved and ran from one side of the street to the other. The road for this mile is of standard gauge, but owing to the extreme grade and curvature of the line cannot be operated with standard engines and cars, but is operated with what is called a dummy engine and short, light passenger coaches, the engine pushing the cars up from the Wabash depot to the Milwaukee depot and pulling them back to the Wabash depot, so as to always have the engine on the south end of the train. By ordinance passed by the board of aldermen of said city, December 13, 1894, the route of the Excelsior Springs railroad was established as it now is and as it had been previously constructed, some three years before, and by said ordinance the Excelsior Springs Railroad Company was given the right "to lay out, locate, construct, maintain and operate a standard gauge railroad upon, along, over and across the following streets and avenues of...