129 S.W. 904 (Mo. 1910), State ex rel. Roland v. Dreyer

Citation129 S.W. 904, 229 Mo. 201
Opinion JudgeGANTT, J.
Party NameTHE STATE ex rel. JAMES D. ROLAND v. JOHN DREYER, Mayor, et al
AttorneyThos. F. Gatts for relator. Berryman Henwood, Robert & Robert, Geo. A. Mahan, Albert R. Smith and O. M. Spencer for respondents.
Judge PanelGANTT, J. Fox, C. J., Burgess, Valliant, Woodson and Graves, JJ., concur; Lamm, J., in a separate opinion, concurs in quashing the writ of mandamus, but dissents from the views of the majority as expressed in the second paragraph of the opinion. LAMM
Case DateJune 21, 1910
CourtSupreme Court of Missouri

Page 904

129 S.W. 904 (Mo. 1910)

229 Mo. 201

THE STATE ex rel. JAMES D. ROLAND

v.

JOHN DREYER, Mayor, et al

Supreme Court of Missouri

June 21, 1910

Writ denied.

Thos. F. Gatts for relator.

The effect of the Glascock plat and the effect of the dedications of the public ground dedicated by him upon the plat, have been before the Supreme Court in two separate cases, and in both of these cases the court upheld and sustained the effect and purposes of these dedications. Hannibal v. Draper, 15 Mo. 635; Hannibal v. Draper, 36 Mo. 332. The following line of decisions in this State, upholds the long established doctrine of the law as to the effect of such dedications. Rutherford v. Taylor, 38 Mo. 315; Hannibal v. Draper, 15 Mo. 635; Brown v. Manning, 6 Ohio 129; Pawlet v. Clark, 9 Cranch 292; Cincinnati v. White, 6 Pet. 432; Lane v. Shepherd, 2 Strange 1204; Jarvis v. Dean, 3 Bing. 447; New Orleans v. U.S. 10 Pet. 662; California v. Howard, 78 Mo. 89; Price v. Thompson, 48 Mo. 363; Sugar Refining Co. v. Elevator Co., 82 Mo. 121; Barclay v. Howells, 6 Pet. 498; Cummings v. St. Louis, 90 Mo. 259; Board of Regents v. Painter, 102 Mo. 465; Warren v. Mayor, 22 Ia. 351; Trustees v. Hoboken, 33 N. J. L. 16; Tracy v. Bittle, 213 Mo. 302; State ex rel. v. Railroad, 206 Mo. 258; Goode v. St. Louis, 113 Mo. 257. One straight, unbroken line of decisions in the Supreme Court holds to the unqualified position, "That specific property dedicated by the owner for designated specific and limited uses, to the public, cannot be diverted in such use inconsistent with and not connected with the purposes of such dedication." Practically, this is the uniform doctrine enunciated by the Supreme Court of the United States and the Federal courts as well as the appellate courts of every State in the Union. Railroad v. Schurmeir, 74 U.S. 272; New Orleans v. U.S. 10 Pet. (U.S.) 662; U. S. v. Railroad, 154 U.S. 225; Hoadley v. San Francisco, 124 U.S. 639; Barclay v. Howell's Lessee, 31 U.S. (6 Pet.) 498; Railroad v. Cincinnati, 76 Ohio St. 481; Railroad v. People, 222 Ill. 427; Alton v. Ill. Transp. Co., 12 Ill. 38; Covington v. McNickle, 57 Ky. (18 B. Mon.) 262; McAlpine v. Railroad, 68 Kas. 207; Coffin v. Portland, 27 F. 416; Parker v. St. Paul, 47 Minn. 317. There may be an express dedication of lands along the margin of navigable water for use as a landing wharf, dock, or levee. New Orleans v. U.S. 10 Pet. (U.S.) 662; Railroad v. Schurmeir, 7 Wall. (U.S.) 272; Barney v. Baltimore, 1 Hughes (U.S.) 118; Coffin v. Portland, 27 F. 412; Demoplis v. Webb, 87 Ala. 659; Napa v. Howland, 87 Cal. 84; Godfrey v. Alton, 12 Ill. 476; Railroad v. People, 222 Ill. 427; Freedom v. Norris, 128 Ind. 377; Newport v. Taylor, 16 B. Mon. (Ky.) 699; Municipality v. Kirk, 5 La. Ann. 34; Coolidge v. Learned, 8 Pick. (Mass.) 504; Buschmann v. St. Louis, 121 Mo. 523; Buffalo v. Railroad, 39 N.Y.S. 4; Askew v. Wynne, 7 Jones L. (52 N. C.) 22; Railroad v. Portland, 14 Ore. 188; Parish v. Stephens, 1 Ore. 59; Penny Pot Landing, 16 Pa. St. 79; Gardner v. Tisdale, 2 Wis. 153; Lawe v. Kaukauna, 70 Wis. 306. Although the fee of land dedicated to public uses may be vested in the county, or in the owners of abutting lots, yet the officers of an incorporated city have the possession and control of all such land within the city limits, and may regulate the use of the same, but they may not devote said land to private uses or even to public uses different from those intended by the dedicator. School District v. Painter, 102 Mo. 664; Hurd v. Harvey County, 40 Kas. 92; Dubuque v. Maloney, 9 Ia. 450; Hoadley v. San Francisco, 50 Cal. 265; Lamar County v. Clements, 49 Tex. 347; Alves v. Henderson, 16 B. Mon. (Ky.) 168; Covington v. McNickle, 18 B. Mon. (Ky.) 284; Flemingsburg v. Wilson, 1 Bush (Ky.) 204; Portland v. Whittle, 3 Ore. 126; U. S. v. Railroad, 2 Biss. (U.S.) 174; Cook v. Burlington, 30 Ia. 94; Warren v. Lyons City, 22 Ia. 351; Field v. Barling, 149 Ill. 556; Lee v. Mound Station, 118 Ill. 318; Morgan v. Railroad, 96 U.S. 716; Ruch v. Rock Island, 97 U.S. 693. Such property as is held in trust for the public as streets, alleys, public squares, wharves, etc., can no more be disposed of by the corporation in violation of the trust than trust property held by an individual. Railroad v. Elevator Co., 2 Dill. (U.S.) 70; San Francisco v. Itsell, 80 Cal. 57; Oakland v. Water Front Co., 118 Cal. 160; Ft. Wayne v. Railroad, 132 Ind. 558; Giltner v. Carrolton, 7 B. Mon. (Ky.) 680; Commonwealth v. Ruch, 14 Pa. St. 186; Weekes v. Galveston, 21 Tex. Civ. App. 102; Ogden v. Bear Lake Co., 16 Utah 440. It is now the settled law of this State that a private citizen may be a party to a proceeding to compel proper observance by the officers of the city or a railroad company in a matter of public right. State ex rel. v. Railroad, 86 Mo. 13; High, Ex. L. Rem., secs. 431-34, p. 304; People v. Collins, 19 Wend. 56; School Directors v. People, 123 Ill.App. 73; State ex rel. v. Railroad, 206 Mo. 251; Tracy v. Bittle, 213 Mo. 302; Railroad v. Hall, 91 U.S. 343.

Berryman Henwood, Robert & Robert, Geo. A. Mahan, Albert R. Smith and O. M. Spencer for respondents.

(1) A railroad company has the power to construct and operate a railroad between any points in this State. Constitution of Mo., sec. 13, art. 12; R. S. 1899, secs. 1122 and 1135. Under this power respondent has the right to condemn a right of way through the public landing. Railroad v. Coal Co., 161 Mo. 288; Kansas City v. Oil Co., 140 Mo. 458; Railroad v. Depot Co., 125 Mo. 82; 1 Farnham, Waters, 552 and note. And this even though the use of the railroad company might be deemed an entirely inconsistent use of the public landing. Augusta v. Railroad, 98 Ga. 161; Railroad v. Starkweather, 97 Ia. 159; Railroad v. Portland, 140 Ore. 198. In the absence of statutory provision, expressed or by implication, permitting it, property devoted to one public use may, under general statutory authority, be taken for another public use, when it will not materially impair or interfere with an already existing use and is not detrimental to the public. Railroad v. Tel. Co., 120 Ala. 21; Steel v. Epson, 142 Ind. 397; Boston v. Brooklyn, 156 Mass. 172; Telephone Co. v. Railroad, 76 Minn. 334; In re Rochester Water Commissioner, 66 N.Y. 413. It is not material that some inconvenience may result to the prior occupant if the conditions are such that the two uses can stand together. Augusta v. Railroad, 98 Ga. 161; Salt Lake City v. Water Co., 24 Utah 249; Telephone Co. v. Railroad, 23 Utah 474. The rule that power must be conferred expressly or by necessary implication applies only where the second use will destroy or injure the use to which the land was originally appropriated or dedicated. Railroad v. Jackson, 156 Ind. 260; Gold v. Railroad, 153 Ind. 230; Railroad v. Anderson, 139 Ind. 490; Matter of Folt's Estate, 18 A.D. 568. The city will be greatly benefited by the improvement of the levee, and greatly injured if the Burlington Railroad is not permitted to make its north and south and east and west connections across the levee, as contemplated in the ordinance. There is a public necessity for the completion of the work as contemplated by the ordinances. If prevented, the railroad company could condemn and the city fail to get an improved landing. It is not contended that the city could change the use of this property by destroying the landing. It could not make a park out of the public landing, nor turn it into a railroad switchyard. It could not lay it off into lots and blocks and build permanent structures thereon; but it has the power to do anything that will not materially impair its use as a public landing. And especially can it do anything to facilitate the handling of freight and passengers on and across the landing. (2) It never has been held by any court that railroad tracks across a public landing are inconsistent with its use and cannot legally be laid. Courts, whenever the question has been before them, have universally allowed the building of the tracks across a public landing. The finding of the commissioner is the first exception thereto. St. Paul v. Railroad, 63 N.W. 267; 65 N.W. 649; 68 N.W. 458; Railroad v. Portland, 14 Ore. 188; Belcher Co. v. Elevator Co., 101 Mo. 192. (3) The general power of eminent domain possessed by railroad companies, and the statutory right of cities owning property to contract for right of way, are sufficient to give the city of Hannibal the power to enact the ordinance in question, without specific charter authority to grant right of way across the landing, as in the case of streets and alleys. Practically, the public landing is a street; Broadway or Market street, Center street, Bird street and Hill street run into it, and people living on such streets go to the river over the public landing, either walking or in any kind of vehicle they see proper, from a dray to an automobile. Stephen Glascock himself regarded it practically as a street. He dedicated to the blocks for a public landing and then put First street on the land so dedicated. In fact, public landings and streets are so closely connected as to be considered one and the same. They are convertible terms. In the charter of the city, streets and alleys and public landings are classed together. Cincinnati v. White, 6 Pet. 435; Bartley v. Howell, 6 Pet. 498; New Orleans v. U.S. 10 Pet. 662; Power v. Portland, 5 B. Mon. 232; Godfrey v. Alton, 12 Ill. 29; Gardner v. Tisdale, 2 Wis. 153; Barney v. Keokuk, 94 U.S. 324; 1 Farnham on Waters and Water Rights, p. 565. Thus it will be seen that streets and wharves are treated as one and the same.

GANTT, J. Fox, C. J., Burgess, Valliant, Woodson and Graves, JJ., concur; Lamm, J., in a separate opinion, concurs in quashing the writ of mandamus, but dissents from the views of the majority as expressed in the second...

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