Ruckert v. Grand Ave. Ry. Co.

• Decision Date: 21 May 1901
• Citation: 163 Mo. 260,63 S.W. 814
• Parties: RUCKERT v. GRAND AVE. RY. CO.
• Court: Missouri Supreme Court

63 S.W. 814

163 Mo. 260

RUCKERT v. GRAND AVE. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 21, 1901.

STREET RAILROADS — CONSTRUCTION — CONSTITUTIONAL LAW — APPEAL — SUPREME COURT — JURISDICTION — STATUTE — CONSTRUCTION — ABUTTING OWNERS — RIGHT TO DAMAGES.

1. Where, in a suit for injunction to restrain a street-railroad company from constructing its line in front of plaintiff's premises, he alleged that the ordinance under which defendant was proceeding to build its line was void, in that it damaged plaintiff's property without compensation, without opportunity to be heard, and without due process of law, a constitutional question was involved, which authorized an appeal to the supreme court.

2. Laws 1887, p. 39, relating to the granting of street-railway franchises, provided (section 2) that, before beginning the construction of any railroad under such franchise, the corporation should cause to be ascertained and

determined the damages that would be done by the building and operation of the road to the real and personal property situated on the route fixed. By the revision of 1889 (section 1825) such part of the prior act was amended to read "that before taking or damaging any property in the construction of a railroad such damage shall be ascertained and determined," etc., and the act as amended was retained by the revision of 1899. Held, that a street railway constructed under a franchise granted in 1893 must be governed by the act as amended and revised, and not by the act as it was originally passed.

3. Act March 26, 1887, § 2, relating to the granting of street-railway franchises, declares that before granting any franchise for constructing and operating "any elevated, underground or other street railway, on, over or under any street," etc., "the city authorities shall by ordinance designate the route," etc. Held, that the words "other street railway" was not confined to railways operated above or under the street, but applied as well to surface street railways operated on the street.

4. Rev. St. 1899, § 6116, provides that, before taking or damaging any property in the construction of a street railway under its franchise, the company shall proceed to assess and provide for the payment of damages therefor. Held, that such statute did not create a new right to damages, and, it having been held that the building of a street railroad was damnum absque injuria to an abutting property owner suffering no special damages, the owner of a vacant lot abutting on a street used and occupied by a street railway was not entitled to damages, in the absence of proof that such property was injured in a manner different from that sustained by the other abutting property owners on the street.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Suit by Henry Ruckert against the Grand Avenue Railway Company to enjoin defendant from constructing a street railway in front of plaintiff's premises. From an order denying the injunction and dismissing the bill, plaintiff appeals. Affirmed.

On the 4th day of October, 1894, the plaintiff filed in the circuit court of the city of St. Louis his petition in the nature of a bill in equity to enjoin the defendant, a street-railway company, from constructing, maintaining, and operating a line of surface street railway on Grand avenue, in said city of St. Louis. The petition alleges the incorporation of the respondent under the laws of Missouri; that "there was duly passed and enacted by the municipal assembly of the city of St. Louis a certain ordinance, numbered 17,047, which was duly approved by the mayor of said city on the 17th day of February, 1893." The route prescribed in the ordinance passed in front of a lot of ground in city block 2,100 in the city of St. Louis, fronting 32 feet 6 inches on the west line of Grand avenue, the north line of which was 35 feet south of the south line of Juniata street, which was alleged to be the property of the appellant. The petition alleges that the Grand Avenue Railway Company accepted said ordinance and filed the bond required by the ordinance, and that it had begun the construction of said railway upon and along the route prescribed by said ordinance, and the laying down and construction of a double-track passenger railway on the route designated in said ordinance. The petition alleges that the respondent has no right to construct, maintain, or operate said road, for the following reasons, to wit: First, that said ordinance was invalid, because it does not locate or establish the depot, stations, turnouts, or switches of said railroad; second, because the respondent did not first cause to be ascertained the damages that will be done by constructing and operating the said railroad to the real and personal property situated along said route thereof, and especially to the property of the plaintiff, and without paying to the plaintiff, or the owners of property along said route, or into court for them, the amount of said damages. It is further alleged: "And plaintiff states that the construction, maintenance, and operation of said railway will cause great and irreparable damages to and depreciation in the value of property along the said route, and particularly in the value of the property by plaintiff, * * * and will deprive plaintiff of the rights which he has hitherto enjoyed and now enjoys as owner of real estate upon Grand avenue, along and adjoining the line of said route." The petition prays that respondent, its officers, agents, and employés, be enjoined and restrained from constructing, maintaining, or operating its said proposed railroad and railway tracks along the route prescribed by said ordinance, and for general relief. The answer of the defendant denies the allegation of the petition that it has no right or power under said ordinance to construct and operate said road, puts in issue appellant's ownership of the property claimed in the petition, and alleges that long before the filing of the petition it had begun the construction of its line of railway, and that at the time of the filing of this petition the entire line of railway, from Easton avenue, on the north, to Arsenal street, on the south, had been constructed and nearly completed, including that portion of Grand avenue along which the property claimed by plaintiff fronts, and that proceedings had been instituted and commissioners appointed for the determination of the compensation to be paid by respondent to the several other railway companies over whose tracks respondent was required to operate, and that respondent had before the filing of this petition, and before a notice of plaintiff's claim, expended in the construction of its railroad $119,000, and had contracted to expend and incurred obligations to make further expenditures in the construction and equipment of said road. The answer further alleges that the operation of said railroad will in no wise interfere with the ordinary use of the highway, and that Grand avenue, in front of the property claimed by plaintiff, is 80 feet wide, and that the tracks of the defendant are only 4 feet 10 inches wide, and are constructed in accordance with the general ordinances of the city of St. Louis, and it was and is a surface railway for the transportation of passengers, so as to permit the use of said tracks by vehicles, and in front of the property claimed by plaintiff; that there is an unobstructed roadway on each side of the tracks of 17 feet 8 inches in width, — more than sufficient for vehicles to pass each other between the curb and the outer rail of the tracks. The answer alleges that the respondent has no depots, stations, turnouts, or switches, within the meaning of the statute relied upon by the appellant, and further alleges that said statute has no application to the ordinance under which defendant has constructed and proposed to operate said street railway, and no application to such a surface street railway as that authorized to be constructed and actually constructed by respondent. It alleges that respondent was in no wise required to ascertain or determine the damages to be done real and personal property along its route, especially the property of plaintiff, for that the statute referred to has no application to a surface railroad of this character, and, further, that no damages whatever, in depreciation of the value of the property or otherwise, have been or can be caused to plaintiff or any other property owner, but that, on the contrary, all such property, including property claimed by plaintiff, was largely enhanced in value by the construction and operation of said railroad. Respondent further alleges that appellant is not entitled to the remedy sued for herein, and that he has a full and adequate remedy at law for any damages which he may now or hereafter claim or sustain; that defendant has not taken, touched, or damaged any private property belonging to plaintiff, and that the petition is without equity; and that no irreparable injury is threatened. The answer further alleges that the appellant, if entitled to any relief, has lost it by his own laches and delay, and is now precluded and estopped from asserting any such claim to equitable relief, and should be remitted to his remedy at law, in that he has permitted defendant to proceed with the construction and completion of said railway, and expend a large sum of money thereon, before asserting or setting up any claim. The appellant filed a reply in denial of all the new matter alleged in the answer. The evidence disclosed the fact that the first work of construction was begun on the 17th of July, 1894, and that the actual work of laying tracks was commenced on the 6th of September, at Laclede avenue, building south from Laclede avenue with a double track. They began going south on Arsenal street on the 19th of September, and got to Gravois road on the 25th of September, and were in front of plaintiff's property on the...