28 S.W. 483 (Mo. 1894), The St. Louis, Hannibal and Kansas City Railway Company v. The Hannibal Union Depot Company

Citation:28 S.W. 483, 125 Mo. 82
Opinion Judge:Macfarlane, J.
Party Name:The St. Louis, Hannibal and Kansas City Railway Company v. The Hannibal Union Depot Company et al., Appellants
Attorney:George A. Mahan for appellants. James P. Wood for respondent.
Case Date:November 26, 1894
Court:Supreme Court of Missouri

Page 483

28 S.W. 483 (Mo. 1894)

125 Mo. 82

The St. Louis, Hannibal and Kansas City Railway Company

v.

The Hannibal Union Depot Company et al., Appellants

Supreme Court of Missouri, First Division

November 26, 1894

Appeal from Hannibal Court of Common Pleas. -- Hon. Thomas H. Bacon, Judge.

Affirmed.

George A. Mahan for appellants.

(1) The purpose and the result of this proceeding is to take away from and deprive appellant of a part of its property and franchise, and to appropriate the same to the exclusive use of respondent. This can not be done, as there is no authority of law for it. Railroad v. Railroad, 118 Mo. 615; Appeal of Railroad, 122 Pa. St. 511; Railroad v. Williamson, 91 N.Y. 552; Hickok v. Hine, 23 Ohio St. 423; Railroad v. Railroad, 81 Ill. 523; Union Depot Co. v. St. Paul, 30 Minn. 359; Railroad v. Railroad, 124 Mass. 368; Cake v. Railroad, 87 Pa. St. 307; Pennsylvania Railroad's Appeal, 93 Pa. St. 150; Railroad v. Brownell, 24 N.Y. 351; Railroad v. Board, 57 F. 945; Railroad v. Railroad, 110 Mo. 510. (2) Neither the charter nor the profile map of respondent shows any authority in respondent to condemn the land in question. The charter only shows that its termini are at Oakwood and Hannibal, but does not locate any point in Hannibal. Nothing can be determined from the map. The right of condemnation as applied to railroad crossing cases is universally based upon an express statute, section 2226, Revised Statutes, 1889. The right to condemn union depot grounds has never been conferred. The general law, section 2741, Revised Statutes, 1889, does not confer upon respondent that right. There is no express statutory authority. Union Depot Co. v. St. Paul, 30 Minn. 359; Railroad v. Railroad, 118 Mass. 391; Matter of Buffalo, 68 N.Y. 167; Railroad v. North, 103 Ind. 486; Matter of Central Park, 63 Barb. 282; Railroad v. Dayton, 23 Ohio St. 510; Railroad v. Commissioners, 118 Mass. 561. (3) This amount of land seems to be indispensable now and for the future demands of appellants' business. Appellant is not necessarily limited to a use of any portion of its depot grounds, without any modification of its present arrangement. It is entitled to make any changes in the tracks, sheds, buildings or otherwise, which may better facilitate the use of the premises for depot purposes. Railroad v. Faribault, 23 Minn. 169; Union Depot v. St. Paul, 30 Minn. 359. (4) The standing of passenger trains on the main tracks to load and unload passengers, and the passage of main line trains over such tracks are necessarily inconsistent. Two public uses, the one requiring control by respondent for the free passage of its main line trains, the other control by appellant for such occupancy as its business requires. Such contradictory and impossible uses of the same land for public purposes will not be permitted. Rex v. Russell, 6 East, 427; People v. Cunningham, 5 Denio, 530; Angell on Highways, sec. 227; Hannibal v. Railroad, 49 Mo. 481. It is not material that the land in question was acquired by purchase instead of by regular condemnation proceedings. Yates v. Van de Bogert, 57 N.Y. 526. (5) It is necessary for the respondent to make this allegation in its petition, and show at the hearing that there will be no material interference in the taking of property for public use. Every demand and requirement of the statute must be strictly followed and affirmatively shown. St. Louis v. Gleason, 93 Mo. 33; Railroad v. Town Site Co., 103 Mo. 462; Anderson v. Pemberton, 89 Mo. 65. (6) There is no necessity for the condemnation of the strip of land in question. Even if it should be conceded that the terminus of respondents' road was north of the union depot grounds, all the evidence shows that respondent could have condemned around the union depot grounds, there was no necessity for crossing the same, and that under the facts in this case, respondent could not legally condemn the strip of ground and the court erred in permitting it. Railroad v. Railroad, 39 Am. and Eng. R. R. Cases, 6, and note at page 15; Appeal of Railroad, 122 Pa. St. 511. (7) A careful reading of the instructions of the court to the commissioners, on the measure of damages, will show that the court confined the commissioners, in assessing damages, to the tract east of Bear creek, and to increased exposure of buildings on other tract to loss or damage by fire, and thus prevented the commissioners from assessing damages to the entire lot or tract. There was but one cut-lot 41. Under repeated decisions of this court this is error. Railroad v. Story, 96 Mo. 611; Railroad v. Calkins, 90 Mo. 538; Railroad v. Waldo, 70 Mo. 629; Railroad v. Ridge, 57 Mo. 599; Railroad v. Fowler, 113 Mo. 459. (8) The court further erred in instructing the commissioners on the measure of damages, by failing to tell the commissioners to base the damages upon the market "value of the land to be appropriated, which is to be assessed with reference to what it is worth for sale, in view of the uses to which it may be put." Railroad v. Porter, 112 Mo. 368; Railroad v. McGrew, 104 Mo. 282; Boone Co v. Patterson, 98 U.S. 408; note to Railroad v. Waldron, 88 Am. Dec. 113.

James P. Wood for respondent.

(1) The taking of the property of one...

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31 practice notes
  • 129 S.W. 904 (Mo. 1910), State ex rel. Roland v. Dreyer
    • United States
    • Missouri Supreme Court of Missouri
    • 21 Junio 1910
    ...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 pub......
  • 61 S.W. 684 (Mo. 1901), Kansas & Texas Coal Railway v. Northwestern Coal & Mining Company
    • United States
    • Missouri Supreme Court of Missouri
    • 26 Marzo 1901
    ...would be less harmful. Railroad v. Young, 33 Pa. St. 175; Eversfield v. Railroad, 3 DeG. & J. 286; Railroad v. Hannibal U. D. Co., 125 Mo. 82. The courts will hold the use public, unless it manifestly has no tendency to promote such use. Welton v. Dickson, 38 Neb. 767. When the use is p......
  • 972 S.W.2d 416 (Mo.App. W.D. 1998), WD 53765, City of Smithville v. St. Luke's Northland Hosp. Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • 21 Abril 1998
    ...was still able to make use of its property. See Campbell, 736 S.W.2d at 386; St. Louis, H. & K.C. Ry. Co. v. Hannibal Union Depot Co., 125 Mo. 82, 28 S.W. 483, 485 (1894). But in the case of a total taking, there can be no coexistence and specific statutory authority is required because......
  • 268 N.W. 430 (N.D. 1936), 6379, Hausken v. L.R. Coman And Northwest Construction Company
    • United States
    • North Dakota Supreme Court of North Dakota
    • 27 Abril 1936
    ...Rep. 193; Garraghty v. Hartstein, 26 N.D. 148, 143 N.W. 390; Pisarek v. Singer Talking Mach. Co. (Wis.) 200 N.W. 676; Best v. Adams (Ky.) 28 S.W. 485; Adams v. Parrish (Ky.) 225 S.W. 469; Allen v. Johnson, 144 Minn. 333, 175 N.W. 545; Quinn v. Heidman, 195 N.W. 775. The general rule that on......
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31 cases
  • 129 S.W. 904 (Mo. 1910), State ex rel. Roland v. Dreyer
    • United States
    • Missouri Supreme Court of Missouri
    • 21 Junio 1910
    ...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 pub......
  • 61 S.W. 684 (Mo. 1901), Kansas & Texas Coal Railway v. Northwestern Coal & Mining Company
    • United States
    • Missouri Supreme Court of Missouri
    • 26 Marzo 1901
    ...would be less harmful. Railroad v. Young, 33 Pa. St. 175; Eversfield v. Railroad, 3 DeG. & J. 286; Railroad v. Hannibal U. D. Co., 125 Mo. 82. The courts will hold the use public, unless it manifestly has no tendency to promote such use. Welton v. Dickson, 38 Neb. 767. When the use is p......
  • 972 S.W.2d 416 (Mo.App. W.D. 1998), WD 53765, City of Smithville v. St. Luke's Northland Hosp. Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • 21 Abril 1998
    ...was still able to make use of its property. See Campbell, 736 S.W.2d at 386; St. Louis, H. & K.C. Ry. Co. v. Hannibal Union Depot Co., 125 Mo. 82, 28 S.W. 483, 485 (1894). But in the case of a total taking, there can be no coexistence and specific statutory authority is required because......
  • 268 N.W. 430 (N.D. 1936), 6379, Hausken v. L.R. Coman And Northwest Construction Company
    • United States
    • North Dakota Supreme Court of North Dakota
    • 27 Abril 1936
    ...Rep. 193; Garraghty v. Hartstein, 26 N.D. 148, 143 N.W. 390; Pisarek v. Singer Talking Mach. Co. (Wis.) 200 N.W. 676; Best v. Adams (Ky.) 28 S.W. 485; Adams v. Parrish (Ky.) 225 S.W. 469; Allen v. Johnson, 144 Minn. 333, 175 N.W. 545; Quinn v. Heidman, 195 N.W. 775. The general rule that on......
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