St. Louis Transf. Ry. Co. v. St. Louis Merchants' B. & T. Ry. Co.

• Decision Date: 31 October 1892
• Court: Missouri Supreme Court
• Parties: ST. LOUIS TRANSFER RY. CO. v. ST. LOUIS MERCHANTS' BRIDGE & TERMINAL RY. CO.

20 S.W. 319

111 Mo. 666

ST. LOUIS TRANSFER RY. CO. v. ST. LOUIS MERCHANTS' BRIDGE & TERMINAL RY. CO.

Supreme Court of Missouri, Division No. 1.

October 31, 1892.

CONSTRUCTION OF RAILROADS — CROSSING TRACKS OF ANOTHER ROAD.

A city in the state authorized a railroad company to construct and operate its road along a certain street of the city 100 feet wide. Afterwards it authorized another railroad company to construct and operate its road along the same street, provided its plan of route and tracks did not injure the tracks laid and side tracks unlaid of the first-named company. The plan of the second-named company was to construct its road along and across said street and the tracks of the first-named company. Held, that the second-named company had a right so to do, under Rev. St. §§ 2543, 2626, providing that between any points in the state any railroad company can cross the tracks of any other railroad company, and cross any city street, with the assent of the city authorities.

Appeal from St. Louis circuit court; JAMES E. WITHROW, Judge.

An action by the St. Louis Transfer Railway Company against the St. Louis Merchants' Bridge & Terminal Railway Company to restrain defendant from constructing and operating its road along and across the street occupied by the road of plaintiff. From a judgment for defendant, the plaintiff appealed. Judgment affirmed.

Hitchcock, Madill & Finkelnburg, for appellant. John H. Overall, for respondent.

BRACE, J.

By the constitution and laws of this state, every railroad corporation "organized for the purpose" has "the right to construct and operate a railroad between any points within this state," and "with its road to intersect, connect with, or cross any other railroad," and to "construct its road across, along, or upon any street," with the assent of the corporate authorities of the city in which such street is situate. Const. art. 12, §§ 13, 14, 20; Rev. St. 1889, §§ 2543, 2626. By its charter, the mayor and assembly of the city of St. Louis have power within the city, "by ordinance not inconsistent with the constitution or any law of this state," or of its charter, to "regulate the use of the streets of the city," and "to grant to persons or corporations the right to construct railways in the city, subject to the right to amend, alter, or repeal any such grant, in whole or in part, and to regulate and control the same as to their fares, hours, and frequency of trips, and the repair of their tracks, and the kind of their rails and vehicles." Scheme & Charter, art. 3, § 26, subd. 11. The plaintiff is a duly-incorporated railroad company, organized for the purpose of constructing and operating a line of railroad within the city, along a route beginning at or near the crossing of Arsenal street by the St. Louis, Iron Mountain & Southern Railroad, in the southern portion of the city, to a point near the water works, in the northern portion of the city, to be used in the business of conveying persons and property, and "especially of transferring cars to and from manufacturing and business establishments, along its route, and to and from other railroads and ferryboats." The defendant is also a duly-incorporated company, organized for the purpose of constructing and operating a railroad connecting the Merchants' bridge, over the Mississippi river at Ferry street, with the Union Depot, and all other railroads terminating in the city, to be used in a similar line of business. By an ordinance approved June 11, 1884, and subsequent ordinances approved December 15, 1885, and February 18, 1886, the plaintiff was authorized to construct and operate its railroad between its terminal points aforesaid, across, on, and along certain streets in said ordinance designated, and, among others, on and along Hall street, between Bremen avenue and North Market street, a distance of about one mile, on which it was authorized to lay a double track in accordance with plans to be approved by the board of public improvements; and, with like approval, to "connect their tracks by switches and side tracks with any warehouse, factory, store, lumber, coal, or stock yards, or depot yards, and transfer boats of any transportation company, or other commercial or manufacturing establishment, located adjacent to the railway of said company. Said switches and side tracks shall be so constructed as in no manner to interfere with the public use of the streets or alleys across which they may be laid, and they shall be removed by said company whenever it shall be so directed by the municipal assembly." Afterwards, by an ordinance approved July 9, 1887, the defendant company was authorized to construct and operate its railroad, with double tracks, between the Union Depot and Chain of Rocks, in said city, across, on, and along certain streets in said ordinance designated, and, among others, on and along that part of Hall street, on and along the center of which the plaintiff, by the precedent ordinances, was authorized to lay and operate its tracks: provided, "that the tracks of said company shall be so laid as not to injure or destroy any tracks now laid by any other corporation, and provided, further, that the location of the route of said railway shall not in any manner interfere with any unforfeited rights of way heretofore granted by the municipal assembly by proper ordinances." It appears from the evidence that Hall street, between North Market street and Bremen avenue, is 100 feet wide, without pavements, lamp-posts, or sidewalks. It lies through...