Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945), requiring every railroad to fence its track, leaving openings and gates at farm crossings, etc., defines the measure of the duty of a railroad company to construct farm crossings, contemplates grade crossings, and does not require the construction of undergrade private crossings merely because it will be more convenient for the adjacent proprietor.
2. RAILROADS (§ 102) — FARM CROSSINGS.
In determining the sort and place of a farm crossing as required by Rev. St. 1899, § 1105 (Ann. St. 1906. p. 945), the interest and convenience of the railroad company and of the adjoining proprietor, and the safety of the traveling public, must be considered.
3. RAILROADS (§ 102) — FARM CROSSINGS.
Where a railroad company is bound to construct farm crossings, and the track is on a high embankment and there is a natural depression through which a subway can be constructed more conveniently than a grade crossing, a subway will be required.
4. ADVERSE POSSESSION (§ 8) — PROPERTY SUBJECT TO PRESCRIPTION — PUBLIC PROPERTY.
One cannot, by adverse possession, acquire title to a railway right of way, which is public property under the statute.
5. RAILROADS (§ 102) — FARM CROSSINGS — CONSTRUCTION — MAINTENANCE.
A railroad company constructed its track through a farm. When the road was first built it was built on a trestle, and under it a road was left for the landowner, and he constructed his fences and barns with reference thereto. Such road was in use for 10 or 12 years. Subsequently the railroad built a solid roadbed where the trestle had been maintained. An underground crossing could be maintained in the solid roadbed with safety to the traveling public. The company proposed to give the landowner a grade crossing some distance away, which would require a removal of the fences and barns. Held, that the landowner had acquired an equity to have the underground way continued for his use, and equity would enforce such right because of the inadequacy of a remedy at law.
6. RAILROADS (§ 102) — RIGHT OF WAY — DEEDS — RECEPTION OF DAMAGES — EFFECT.
Neither the execution of an unconditional deed, conveying land for a railroad right of way, nor the receiving of damages for a right of way, will destroy the right to compel the construction of a private crossing.
7. RAILROADS (§ 102) — FARM CROSSINGS — ENFORCEMENT OF RIGHTS — INADEQUACY OF LEGAL REMEDY.
Equity will, under proper circumstances, and when there can be no adequate compensation in damages, order a railroad company to construct a private undergrade crossing.
Case Certified from St. Louis Court of Appeals.
Action by Josee T. Powell against the Atchison, Topeka, & Santa Fé Railway Company. Judgment for plaintiff. Defendant appeals to St. Louis Court of Appeals, and case there certified. Affirmed.
The following is the majority opinion of that court, written by Goode, J.:
"Plaintiff owns a farm of about 500 acres in Scotland county, through which the defendant's railroad runs diagonally from the northeast to the southwest. The road was constructed through the farm in 1887 by the Chicago, Santa Fé & California Railroad Company, of which the defendant is successor. Plaintiff conveyed land for the right of way through his farm to the original company April 13, 1887, for a consideration stated to be $806.80. Plaintiff has been the owner of the farm for upwards of 25 years. Some of his land lies on the southeast side of the railroad, and the remainder on the northwest side. One 80-acre tract is in pasture. Fifty acres of it lies southeast of the railroad, and 30 acres northwest. On the 50 acres on the south side there is a perennial spring, which plaintiff used until 1899 for watering his stock. His barn and cattle lot are on the 30 acres north of the railroad. When the road was built in 1887 an open trestle was left between the 30-acre tract on the north and the 50-acre tract on the south, so that the plaintiff's stock would have easy access to the water supplied by the spring on the south side, according to their habit. This trestle was about 10 feet high, and under
it a road was left for plaintiff's use in watering his stock and passing from the north to the south side of his farm. In 1899 the railroad company filled the passage under the trestle with earth, making a solid embankment, thus cutting off the undergrade connection between plaintiff's pasture, stock lots, and barn, and the land and spring on the south side. In lieu of the undergrade way the company constructed, or intends to construct, a grade crossing at the west end of the trestle and where the track emerges from a cut. This grade crossing will require gates on either side to inclose the right of way. The second count of the petition, on which relief was granted, after averring the facts somewhat as we have stated them, avers that, after the construction of the railroad, plaintiff's stock continued to pass through the underground way until it was filled in 1899; that plaintiff had arranged his feed lots, barns, pasture, and fences with reference to the underground way left by the railroad company and said way was the only proper and convenient place for a farm crossing and the most convenient and best suited to plaintiff's use; that where the defendant intends to construct an overground way it will not be so commodious and convenient for plaintiff; that since filling up the trestle the defendant has failed to furnish plaintiff a crossing; that the grade crossing will require a readjustment of the plaintiff's feed lots, pasture, barn, and fences, and be dangerous for the passage of his stock. Judgment was prayed for $500 damages for failure to furnish a proper crossing, with a prayer that the defendant be compelled to reopen and construct the underground way as used by plaintiff until filled by the defendant. The answer was a general denial.
"The court submitted eight issues to the jury, as follows:
"`(1) Is the underground crossing asked for by the plaintiff a practical and beneficial crossing, taking into consideration the use to which plaintiff's land is to be put and all other facts and circumstances in the case?
"`(2) Can a safe and secure underground crossing be made at or near the point where plaintiff had been using the same before said embankment was put in?
"`(3) Has the plaintiff furnished defendant on his farm sufficient farm crossings for the accommodation and use of the farm?
"`(4) Does plaintiff have the adverse, unobstructed, and continuous use of the underway as a crossing for more than ten years after the construction of its roadbed? If so, was such use and enjoyment with the acquiescence of defendant?
"`(5) Would the grade crossing be more advantageous and convenient for defendant than the underground crossing?
"`(6) Did plaintiff build his fences, barns, and other improvements with reference to and so as to accommodate himself to said underground crossing?
"`(7) Outside of the arrangement of plaintiff's gates and fences and the trouble of opening and shutting gates and danger to stock, would the underground crossing be more convenient to plaintiff than the grade crossing?
"`(8) The jury will say what plaintiff's damages are, if any, by reason of a want of crossing from October, 1899, to June 2, 1900, if you find proper and sufficient crossing has not been furnished, and that plaintiff is damaged thereby.'
"To all those issues except Nos. 3 and 8 the jury answered `Yes,' but to the third and eighth no answer was given.
"After findings on the issues submitted to the jury had been reported, the court entered the following finding and judgment:
"`Now the court adopted the foregoing findings of said jury, and further finds that at the time defendant constructed its roadbed through plaintiff's land it ran through the following: North half of the northeast quarter of section 25, township 64, range 11, in Scotland county, Mo; that, at the time they so built and purchased the roadway, the plaintiff had on the east side of said roadbed a spring of water, and that he owned in connection with said lands on the east side a farm of something more than 500 acres; that said spring was valuable in connection with said farm for the water privileges to be derived therefrom; that at the time of building said road defendant left under said roadway where the same crossed the aforesaid lands a passageway under the road, which served as a farm crossing to and from the balance of said farm to said spring; there was a trestleway over the same, and the plaintiff used same by the consent of defendant, and by its acquiescence for over 10 years before the institution of this suit, and that defendant kept the same in repair for him and treated the same as a farm crossing.
"`And the court further finds that the plaintiff built his improvements on his farm, consisting of the barns and fences, with a view to using such underground crossings to and from said spring to the balance of his farm, and he expended his money with a view to using the same.
"`The court further finds that afterwards defendant made a solid embankment across said underground crossing, so obstructing same, and cutting off plaintiff's communication with his spring situated on the east side of said roadway.
"`And the court further finds that it would be more advantageous to plaintiff, and after its construction equally commodious for defendant, to have a way where claimed by plaintiff, which is near his barn on such aforesaid tract, and that the same would be more convenient to plaintiff on account of his said improvements.
"`And the court further finds that plaintiff ought to have an underground crossing immediately east of said barn, where said improvements have been so placed by plaintiff, and...
