Chicago, Burlington & Quincy Railroad Co. v. McCooey
| Decision Date | 22 December 1917 |
| Citation | 200 S.W. 59,273 Mo. 29 |
| Parties | CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. JAS. M. McCOOEY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Hannibal Court of Common Pleas. -- Hon. William T Ragland, Judge.
Affirmed.
Nelson & Bigger for appellants; F. L. Schofield, of counsel.
(1) Where private property is sought to be taken against the will of the owner under statutory authority all the statutory requirements must be fully and strictly complied with. Railway v. Davis, 197 Mo. 669; Railroad v Leewright, 113 Mo. 667; Ells v. Railroad, 51 Mo. 200; St. Louis v. Koch, 169 Mo. 587; Williams v. Kirby, 169 Mo. 622; Railroad v Young, 96 Mo. 39. And the question of the existence of the power is a jurisdictional one and may be controverted at any stage of the proceedings. Hopkins v. Railroad, 79 Mo. 98; Railroad v. Campbell, 62 Mo. 585. When the power of eminent domain is sought to be exercised by a railroad company, it must act within the time limited to the company in its charter. Railroad v. St. Louis, 66 Mo. 250; Railway v. Railway, 129 Mo. 70. (2) It is believed that the only legislative authority conferred upon railroad corporations in this State to condemn rights of way for the main line of their roads is to be found in the following section of the statutes: R. S. 1909, sec. 3048, 3049, 3074, 3212. The right of condemnation asserted and pursued by the plaintiff in this case is not conferred or supported by any of the above sections nor, it is believed, by any other statutory authority. (3) The power to condemn here asserted is based upon the plaintiff's succession in ownership and right, as assignee, of the St. Louis, Keokuk & Northwestern Railway Company. But that company never acquired such power in respect of the property of the defendants here involved. (a) The articles of association of that company neither contemplated nor authorized the building of any railroad except an extension of the old Mississippi Valley & Western railroad from the town of Dardenne in St. Charles County to the city of St. Louis. (b) The profile map of that company itself clearly shows that its railroad, built or proposed, did not pass over, run across or even approach these lands of the defendants here involved. Railway v. Davis, 197 Mo. 669. (c) The profile map fails to show any definite width by actual survey "laid out," as required by statute. R. S. 1909, secs. 3048, 3049. (d) But, even if the profile map did show a definite width by actual survey for the right of way, and even if it did show the location of its railroad upon and across the property of the defendants, still, such right of condemnation expired by a failure to finish its railroad and put it into operation within ten years limited to it by the statute. R. S. 1909, sec. 3212. (4) Even if it be conceded that the St. Louis, Keokuk & Northwestern Railway Company had acquired and perfected a full right to enter upon and condemn the property of defendants prior to 1878, in that year said company entered into a contract with the Hannibal Bridge Company whereby it provided and secured for itself both a temporary traffic arrangement and a definite provision for an ultimate permanent right of way of its own across these two city blocks over ground not owned by these defendants but owned by the Bridge Company. By so doing that Railway Company avoided the necessity and cost of condemning and paying for a right of way across said city blocks on defendants' property, and it and its successor, the plaintiff company, having gone into possession of and used the rights acquired by this contract for more than thirty-five years, must now be held to have abandoned whatever right to condemn defendants' property which said company may have had, if it ever had any such right. Railway v. Davis, 197 Mo. 676; Investment Co. v. Railroad, 108 Mo. 50. Furthermore the St. Louis, Keokuk and Northwestern Railway Company by so providing itself with a right of condemnation across these two blocks on the right of way ground of the Bridge Company, elected to be satisfied with such narrow right of way so acquired. Neither that company nor its successor, the plaintiff company, after standing on this election for a period of thirty-five years, can now repudiate it. Railway v. Railroad, 135 Mo. 557. (5) The "right to condemn more land" for a right of way, necessarily implies the existence of some present right of way which is to be widened to meet the need. In the case at bar the effort is not to widen a narrow right of way already existing, and owned by the condemning company; but the effort is to acquire an entirely new right of way where no right of way existed before. No statutory authority can be found to authorize such a proceeding. (6) If the right to condemn "more right of way" across these two city blocks exists anywhere, it abides only in the Bridge Company whose present right of way borders on defendants' land, and not in the plaintiff company which possesses no right of way whatever immediately adjacent to defendants' lands. In such a case, insofar as relates to the main line of road, "the right of way is restricted to what was originally claimed;" "and whatever lien upon or right to the land it may have secured by locating its road and filing its map, will be confined to the quantity it elected to take." Railway v. Railroad, 135 Mo. 557.
Chester M. Dawes, O. M. Spencer and Mahan, Smith & Mahan for respondent.
(1) Plaintiff has full power to condemn the property and the action of the trial judge in entering a judgment of condemnation was right. Secs. 3039, 3049, 3074, 3078, 2360, 2368, R. S. 1909; Bridge Co. v. Stone, 174 Mo. 49; State ex rel. v. Cook, 171 Mo. 360; Railway v. Lewright, 113 Mo. 660; Gray v. Railroad, 81 Mo. 126. (2) Having acquired a right of way and used the Bridge Company tracks as a part thereof, plaintiff can lawfully condemn the adjoining property within its one-hundred-foot-wide right of way. Lewis on Eminent Domain (3 Ed.), secs. 403, 221; In re Railroad, 21 A. 969; Gardner v. Railway, 43 S.E. 867; Hopkins v. Railway, 51 A. 404; Childs v. Railway, 33 N.J.L. 323; Railway v. Railway, 71 N.E. 1019. (3) All of the evidence shows, and the court found, that plaintiff and its predecessors had for thirty-five years a lawfully-acquired and daily-used right of way from Keokuk to St. Louis across part of defendant's property, and that the property sought to be condemned is within its hundred-foot wide right of way; and that plaintiff has the right to condemn it. This concludes defendants and the finding of the trial court will not be reviewed. State ex rel. v. Railway, 162 Mo. 399; Nickey v. Leader, 235 Mo. 43; Wellman v. St. Ry. Co., 219 Mo. 150; Brecker v. Fillingham, 209 Mo. 583.
This proceeding was instituted in the circuit court for Marion County on February 15, 1908, by petition under what is now Section 2360, Revised Statutes 1909, to appropriate by condemnation a strip of land in blocks 33 and 50 of the city of Hannibal belonging to defendant, for the purpose of constructing and operating thereon a double-track railway. The strip lies east of and adjoining the right of way of the Hannibal Bridge Company thirty feet wide upon which it operates its tracks, and, in connection with that right of way, does not exceed the width of one hundred feet at its widest part. The petition stated, in substance, that the plaintiff was a corporation of the State of Illinois, doing business in Missouri, and owning a railroad in this State, of which the contemplated tracks across defendants' land would constitute a part; and that said tracks were necessary to facilitate the performance of its public duties.
Upon the filing of the petition in vacation commissioners were appointed to assess the damages, and upon the coming in of their report plaintiff paid to the clerk the amount of their award, and proceeded with the construction of its road, which had been completed and was in operation at the time of the trial.
At the September term, 1908, and on the 29th day of that month, the plaintiff filed a second amended petition of which the object was the condemnation of the same land for the same purpose as in the original petition. The defendants answered, admitting the ownership of the land as charged and denying every other allegation. On the same day the cause was tried to a jury on this petition and answer, and a verdict was returned assessing the damages of the several defendants on account of their respective interests in amounts aggregating seven thousand five hundred dollars. As to this amount no question is made by defendants in their briefs. On the contrary, they say that the very basis of their contention is that "neither the plaintiff nor any of its antecedent corporations ever had any located right of way" whatever over these city blocks. Pursuant to this theory they filed, at the close of all the evidence, a motion which, omitting its title and signature is as follows:
"The defendants move the court to dismiss the proceedings for the reason that the petition does not state facts sufficient to constitute a cause of action and because the evidence in the cause fails to show any right on the part of the plaintiff to condemn the property as prayed in the petition."
The facts pertinent to the issues so presented are that in June 1875, the Mississippi Valley & Western Railway Company, a corporation formed by consolidation under the laws of Missouri and Iowa, of an Iowa corporation of the same name, and a Missouri corporation named the Mississippi & Missouri River Air Line Railroad Company, owned a railroad extending from the west end of the railroad bridge at Keokuk, Iowa, to Hannibal, Missouri, where it...
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