Zimmerman v. Metropolitan Street Ry. Co.

• Decision Date: 30 January 1911
• Citation: 134 S.W. 40,154 Mo.App. 296
• Parties: A. D. ZIMMERMAN, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

134 S.W. 40

154 Mo.App. 296

A. D. ZIMMERMAN, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 30, 1911

Appeal from Jackson Circuit Court.--Hon. H. L. McCune, Judge.

Judgment affirmed.

John H Lucas and Ben F. White for appellant.

James G. Smith for respondent.

OPINION

ELLISON, J.

In the month of October, 1903, defendant was operating a street car line east and west on Fifteenth street in Kansas City, at a point where that street intersects Kensington avenue. On the east side of Kensington avenue and south side of Fifteenth street was a car barn of defendant, used for the purpose of storing cars, and for such other purposes as are incident to a switch yard of a street railway company. On the west side of Kensington avenue, and immediately south of Fifteenth street, plaintiff had the ownership and possession of a tract of land abutting upon Kensington avenue, at said point 132 feet, and situate upon this abutting property are two two-story buildings, to which building ingress and egress is had by way of Kensington avenue.

The petition alleges that the defendant had no legal right whatever to construct any street car tracks or any other obstructions in Kensington avenue along and in front of the plaintiff's property. That in the month aforesaid, the defendant began the construction of a switch track from the Fifteenth street tracks at a point slightly west of the west line of Kensington avenue, and built such track in a southeasterly direction across Kensington avenue at a point a little south of the south line of Fifteenth street, which track, as so constructed, entered into the barn of defendant.

After the switch track had been laid down, defendant began the construction of a spur track in Kensington avenue, branching off in a southernly direction from the south side of the switch track, and then plaintiff filed his petition in the circuit court asking to enjoin defendant from further constructing "car tracks in said Kensington avenue, and from the obstruction and destruction of said Kensington avenue as a public highway; that defendant be ordered to remove all tracks and other obstructions placed in said Kensington avenue, and to restore said Kensington avenue to the condition in which it was previous to the acts herein complained of."

Plaintiff further alleged that: "Said tracks completely gridiron the entire surface of Kensington avenue in front of the plaintiff's property; that said tracks are designated for and will be used when completed for the purpose of shunting cars backward and forward and onto the premises of defendant east of Kensington avenue, and also for the purpose of standing cars or storing them . . . whereby said defendant will wholly destroy said avenue as a public thoroughfare, and will confine the same to its own exclusive use, without lawful authority or any authority whatever, and wrongfully to the great and irreparable damage of plaintiff which said obstruction so placed and maintained by said defendant in said avenue will constitute a public nuisance, and a private nuisance to this plaintiff. . . . Plaintiff says such injuries here complained of will be continuous, irreparable and unascertainable, and cannot be compensated in damages; that in addition to the damages and injuries sustained by the entire public by reason of the nuisance aforesaid, this plaintiff will sustain local and specific damages and injuries to his said property, and in the use thereof, which said damages and injuries are local, peculiar, and specific to him, and separate and different from that of the public generally, or other persons who may suffer injuries thereby. That plaintiff is without adequate remedy at law or any remedy whatever for the injuries and wrongs aforesaid, except in equity, for the abatement of said nuisance and the restoration of said street to the use of the public, and especially for the free and open use of this plaintiff in connection with his said lot."

After filing the petition defendant ceased to further dig in Kensington avenue or further construct tracks there until December 4, 1903, on which date there was approved by the mayor of Kansas City an ordinance styled "An ordinance granting permit to the Metropolitan Street Railway Company to lay and maintain a spur track on Kensington avenue south of Fifteenth street," which permit recites that the company owned 190 feet fronting on the east side, and that the track is permitted to be constructed along in front of said 190 feet on Kensington avenue, with turn-outs to the car barn of said Metropolitan Street Railway Company.

Between the date of granting of said permit, and the trial of the cause, the spur tracks in Kensington avenue were actually constructed by defendant as plaintiff alleged in his petition would be done. Defendant was shown by the evidence to be using the street as a depot yard for the purpose of shunting cars, and cleaning them and storing them, as plaintiff in his petition alleged would be done. On the showing of these facts, the...