Henry Gauss & Sons Manuf'G Co. v. St. Louis, K. & N. W. Ry. Co.

• Decision Date: 13 December 1892
• Citation: 113 Mo. 308,20 S.W. 658
• Court: Missouri Supreme Court
• Parties: HENRY GAUSS & SONS MANUF'G CO. v. ST. LOUIS, K. & N. W. RY. CO.

20 S.W. 658

113 Mo. 308

HENRY GAUSS & SONS MANUF'G CO. v. ST. LOUIS, K. & N. W. RY. CO.

Supreme Court of Missouri, Division No. 2.

December 13, 1892.

EMINENT DOMAIN — RAILROAD IN STREET — RIGHTS OF ABUTTING OWNERS — COMPENSATION.

The construction and operation of a railroad at grade in a public street under municipal authority is not a new public use of the street, for which compensation may be demanded by abutting owners, as in the case of property "taken or damaged," within the meaning of article 2, § 21, of the constitution.

Appeal from St. Louis circuit court; D. D. FISHER, Judge.

Petition by the Henry Gauss & Sons Manufacturing Company against the St. Louis, Keokuk & Northwestern Railway Company, for an injunction. Petition dismissed. Plaintiff appeals. Affirmed.

Mills & Flitcraft, for appellant. John G. Chandler, for respondent.

MACFARLANE, J.

This suit is to enjoin defendant from laying a track and operating a railroad laterally along Main street, in the city of St. Louis, in front of the property of plaintiff, until compensation for damages thereto should be ascertained and paid. Upon a trial in the circuit court plaintiff's petition was dismissed, and it appealed. A preliminary injunction, which was granted at the beginning of the suit, was dissolved, and the road had been built and was in use when the case was tried. The petition charged, and the evidence showed, that Main street is, and for many years has been, an improved, graded, guttered, curbed, and paved public highway, running north and south through the city of St. Louis. That plaintiff owns the entire block fronting on Main street between Clinton and Madison streets, and has thereon a two-story and basement factory, having a front of 240 feet by a depth eastwardly of 130 feet, which was erected for the special purpose of, and was adapted by its construction to use as, a planing mill, sash, door, blind, and box factory, and was used as such; that the building fronts on Main street, and is so constructed that the only front which is adapted for receiving and shipping lumber from the street is the Main street front; that the building is constructed with doors and driveways opening on Main street, for the purpose of receiving lumber and shipping out the product of its said factory; that Main street has a width of 80 feet; that the Merchants' Terminal Railroad Company has also a double-track railway along said street, the easternmost rail being within 15½ feet of the curb in front of the factory; that plaintiff and its customers had theretofore had free access to said factory by driving wagons and other vehicles over Main street to its front, and, for the purpose of carrying thither or removing therefrom lumber or mill work, have been able to enter said premises from Main street front by means of doors and entrances provided, and have been able to have wagons and vehicles stand on the street, in front of the factory, for the purpose of receiving and discharging lumber and mill work; that there is in front of said premises a sidewalk, made of plank and cinders, 15 feet wide from the building line to the curb of the street; that the defendant threatened and was about to occupy and obstruct said street by laying thereon in front of said factory, and operating by steam locomotives thereon, double tracks, thereby permanently obstructing said street, and not leaving space between the track and the building sufficient to permit of standing wagons and other vehicles, without constant danger of collision with engines and cars passing to and fro over said tracks, all of which would wholly destroy the use of the street as a thoroughfare, and tend to the manifest wrong and injury of plaintiff, and damage of its said property. The damage to the property, as charged, consisted in the prevention of free ingress and egress to and from the streets, noise and smoke, damage from fires, shaking and vibration of building; all caused by the passage of engines and cars over the street in such proximity to the premises. Defendant answered, setting up authority by virtue of an ordinance of the city granting it the license and right to construct a double-track railroad along Main street. The ordinance required that the tracks should conform to established grades of the street crossed and occupied. The ordinance and its provisions were not denied. The evidence satisfies us that the tracks were built in a careful and skillful manner, and in compliance with the requirements of the ordinance.

1. We are satisfied from an examination of the evidence that plaintiff's property has been somewhat depreciated in value by reason of the construction of the railroad along the street, and the movements of engines and trains thereon. The inquiry to be made is whether the damages thus inflicted are such as are contemplated by section 21, art. 2, of the state constitution, which ordains "that private property shall not be taken or damaged for public use without just compensation." It is not claimed by plaintiff that there was any physical injury done to their property, or that their possession was disturbed. It was also shown to our satisfaction, or conceded under the pleadings, that Main street was dedicated without restrictions to general use as a highway; that defendant was authorized, by the charter and ordinances of the city, to lay its tracks along said street, and to move thereon cars, propelled by steam locomotives, for the transportation of persons and property; and that the track was laid on the established grade of the street, and was constructed in a careful and skillful manner, and in strict compliance with the requirements of the ordinance. On the other hand, it must be conceded by defendant, because it is too well settled to admit of question, that every owner of a lot abutting on a public street, besides the ownership of the property...