St. Louis & S. F. R. Co. v. Gordon

• Decision Date: 12 June 1900
• Citation: 57 S.W. 742,157 Mo. 71
• Court: Missouri Supreme Court
• Parties: ST. LOUIS & S. F. R. CO. v. GORDON, Mayor, et al.

57 S.W. 742

157 Mo. 71

ST. LOUIS & S. F. R. CO. v. GORDON, Mayor, et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

RAILROADS — RIGHTS OF WAY — CROSSINGS — STREETS — POWERS OF VILLAGE BOARD — DEDICATION — PLATS.

1. A street or road cannot be established across a railroad's right of way except by proper condemnation proceedings in court, and by due process of law, awarding and paying the company just compensation; and an order of a village board opening a street across such right of way is void.

2. Rev. St. 1889, §§ 2609, 7925, requiring railroad companies to construct crossings where the railroad crosses public roads or streets, and, if not built, authorizing the construction of them at the railroads' expense, refers only to roads or streets that have been or may be legally established; and an order of a village board directing the construction of a crossing where there is no legal street is void.

3. The dedication of a street across the right of way of a railroad company by a private individual does not legally establish such street across the railroad's right of way.

4. Plaintiff's grantor, a railroad company, filed a village plat showing certain streets coming up to its right of way on either side. The plat contained nothing to show that some of the streets were to cross the right of way and others were not, and some of the streets have been used as public ways for more than ten years. Held, that the plat shows a dedication of all the streets.

Appeal from circuit court, Laclede county; L. B. Woodside, Judge.

Bill by the St. Louis & San Francisco Railroad Company for an injunction restraining John I. Gordon, as mayor, and W. S. Bradshaw, as street commissioner, of the village of Conway, from opening certain streets across plaintiff's right of way. Bill dismissed, and plaintiff appeals. Modified.

L. F. Parker and J. T. Woodruff, for appellant. R. S. Phillips, for respondents.

MARSHALL, J.

This is an injunction suit to enjoin the defendant Gordon, as mayor, and the defendant Bradshaw, as street commissioner, of the village of Conway, in Laclede county, from opening Washington avenue and Ruby street across the plaintiff's right of way. A temporary injunction was granted, which upon final hearing was dissolved, and the bill dismissed, and plaintiff appealed. The petition alleges that the defendants are undertaking to lay out said streets across the right of way without any authority of law, and that to permit them to do so would be to deprive the plaintiff of its property without its consent and without compensation. The answer admits the plaintiff's incorporation as a railroad, and its ownership of its right of way, but alleges that its right of way is only an easement; admits that the defendants are proceeding to open said streets across the plaintiff's right of way, but says they are officers of the village, and had a right to do so by virtue of appropriate action of the board of trustees of the village; denies that to open said streets would deprive the plaintiff of its property without compensation; and alleges that said Washington avenue had been laid out by defendant's predecessor across the railroad, and that Ruby street had been laid out across the railroad by C. Hanson. The replication specifically denied that Conway was an incorporated village, or that it possessed the powers it was exercising; denied that Washington avenue was laid out across the railroad by its grantors, or that Ruby street had been legally laid out across the railway by C. Hanson. At the trial the following stipulation was made: "It is stipulated and agreed by and between the parties herein that the St. Louis and San Francisco Railroad Company owns its right of way through the town of Conway, in Laclede county, Missouri, in fee simple, and did own the same at the time these proceedings were instituted, by the same title, and for several years prior thereto, subject, of course, to any rights the city of Conway may have acquired by virtue of any law or municipal action on their part to acquire title to any part thereof for street purposes." In addition to the admission in the answer and the foregoing stipulation, plaintiff proved that there were two crossings over the tracks in the town, and they had been in and used since the road was built, in 1870; that the crossing sought to be made at Ruby street was in a cut, and intersected the main and two side tracks (the switch stands and frogs being in the street); that such a place is unsafe for a crossing; that it would cost $150, outside of the grading, to put in a crossing at Ruby street, and would cost $125 per annum to maintain it, and that the company would be damaged $5,000 by the establishment of a crossing at that place; that it would cost $100 to put in a crossing at Washington avenue, and $75 annually to maintain it. Defendants, to justify their acts in attempting to open the streets, introduced in evidence the original map of the town of Conway, filed March 15, 1870, and plat of the Second Railroad addition to the town, filed April 20, 1881; also, plat of C. Hanson's First addition, filed March 27, 1882. They introduced, also, the following order: "At a regular meeting of the board of trustees of the town of Conway the following, among other, things were ordered: Railroad crossing should be put in at Washington avenue and Ruby street, and the street commissioner ordered to notify agent. J. I. Gordon, Pres. Board of Trustees. R. J. Newport, Clerk." And also the following order: "To John Lindsay, Agent St. Louis & San Francisco Railroad Company: You are hereby notified that the board of trustees of the town of Conway have ordered crossings put in at the following crossings: One where Washington avenue crosses railroad, and also one where Ruby street crosses railroad, within the corporate limits of said town; said crossings to be put in within thirty days from the date of this notice, or the street commissioner will proceed to put them in according to law. W. S. Bradshaw, Street Commissioner. This April 19, 1897." The plats referred to are: First, a plat of the town of Conway, made by the South Pacific Railroad Company, through Andrew Pierce, Jr., its managing director, on the 13th of March, 1870, and duly recorded on that day. It shows a town of 20 blocks, bounded by Olive street on the east and Elm street on the west. Next west of Olive street is Pine street. Then next west there is Commercial street, 50 feet wide. Then 160 feet marked "Depot Grounds," and showing a building (station house, apparently), platform (seemingly), and red lines, which are supposed to represent railroad tracks. Adjoining this 160 feet on the west is Main street, 50 feet wide. Then, proceeding westwardly, are Spruce street and Myrtle street, and then Elm street, the western limits of the town. All these streets run practically north and south, as does, also, the right of way. Running east and west, there are three streets, — Washington, Madison, and Jefferson avenues. All of these streets appear on both sides of the depot grounds. There is no indication on the plat of any intention that these streets shall not be opened across the tracks, but the plat clearly shows a contrary intention. The depot building and platform are between Jefferson and Madison streets. The second plat is styled "Plat of the 2d Railroad Addition to the Town of Conway, in Laclede County, Mo.," and was filed by the St. Louis & San Francisco Railway Company on the 28th of April, 1881. So far as it pertains to the matter in hand, there is no difference between this and the first plat, above referred to. The third plat was filed on March 27, 1882, by C. Hanson, and is styled "C. Hanson's First Addition to Conway, Mo." It purports to add blocks 21, 22, 23, and 24 to the town, and adjoins the town on the north. Blocks 21 and 22 lie west of the railroad track, and blocks 23 and 24 lie east of the track. It shows Ruby street running along the south line of these blocks, and crossing the railroad track. Between blocks 22 and 23 there is a vacant space left on the plat, which is not designated in any way, except by a red line drawn through the center thereof; but, if this plat is laid beside the first plat of the town, this vacant space corresponds with the 160-foot right of way of the railroad, shown on the first plat, and it is assumed that this vacant space is the railroad right of way.

Two questions are presented by this record: First, do sections 2609, 7925, Rev. St. 1889, which require railroad companies to construct crossings where the railroad crosses "public roads or streets now or hereafter to be opened for...