De Geofroy v. Merchants' Bridge Terminal Ry. Co.

• Decision Date: 23 December 1903
• Citation: 179 Mo. 698,79 S.W. 386
• Parties: DE GEOFROY et al. v. MERCHANTS' BRIDGE TERMINAL RY. CO.
• Court: Missouri Supreme Court

79 S.W. 386

179 Mo. 698

DE GEOFROY et al. v. MERCHANTS' BRIDGE TERMINAL RY. CO.

Supreme Court of Missouri.

December 23, 1903.

RAILROADS — STREETS — ABUTTING OWNERS— ELEVATED RAILROADS—ADDITIONAL EASEMENT—CONSTITUTIONAL LAW—DEPRIVATION OF PROPERTY—LIMITATION OF ACTIONS.

1. An elevated railroad constructed on permanent arches in the street, so as to shut out light and air of the abutting owners and interfere with the free use of the streets and their access to and from their premises, is an additional servitude not in contemplation when the street was acquired or laid out, and the owner is entitled to compensation therefor, irrespective of Rev. St. 1899, §§ 6116, 6117, requiring corporations constructing elevated street railroads to compensate the owner for deterioration in the value of the property of abutting owners.

2. As the damages caused by such a structure are completed with its erection, and capable of ascertainment in an action at that time, the

action therefor is barred by the statute of limitations of five years.

Valliant, J., dissenting in part.

In Banc. Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by Antoine De Geofroy and others against the Merchants' Bridge Terminal Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Sale & Sale and David Goldsmith, for appellants. Jno. H. Overall, for respondent.

GANTT, J.

This is an action by plaintiffs, who are abutting owners of real estate on Front street, in the city of St. Louis, for damages to their said realty occasioned by and resulting from the construction and operation of an elevated steam commercial railroad along and over said Front street in front of plaintiffs' lots. In the circuit court a demurrer to the petition was sustained on the ground that it did not state facts sufficient to constitute a cause of action. The propriety of that action by the circuit court presents the sole and only question for our determination at this time.

Omitting caption, the plaintiffs allege that the defendant is a railroad corporation, engaged as a common carrier, operating a steam railroad with locomotives and cars, at and in the city of St. Louis; that plaintiffs are now, and for many years have been, the owners in fee simple of a lot in City Block 5, fronting 76 feet on the west line of Wharf or Front street, in the city of St. Louis, with a depth of 75 feet, on which lot there were at all the times mentioned in the petition, and now are, erected three substantial four-story brick buildings, known as Nos. 203, 204, and 205 South Levee or Front street; that plaintiffs acquired the said lot and premises prior to the year 1890, and have owned and occupied the same by themselves and their tenants continuously since April, 1890; that said Front street, known as the "Levee or Wharf," is, and was for many years prior to the construction of defendant's said railway as hereafter set out, a public street and highway of the city of St. Louis, and held by said city in trust for the maintenance thereof, as public streets are generally used and maintained; that plaintiffs were and are seised of an easement in said street, and are entitled to have the same kept and used as a public highway, and to be protected from unusual and extraordinary interferences with the light, air, and access to and use of their premises not occasioned by ordinary street uses; that, as an incident and appurtenant to plaintiffs' ownership of said premises, plaintiffs, at least until condemnation, compensation, or purchase, have and had in said Front street the right and easement to its free and unimpaired use, for the uses and ordinary purposes of a public street or highway, and to exemption from noise, smoke, soot, dust, cinders, obstructions, and unusual impairment of the easements of light, air, and access and ingress and egress to and from said premises, etc.; that defendant's structure, and the operation of its engines and cars on said street, in front of plaintiff's premises, are of a permanent and continuous nature.

The petition avers that the railroad of the defendant was an elevated road, the super-structure of which rested upon iron columns, where were erected perpendicularly to a height of from fifteen to twenty-five feet above the surface of the street or sidewalk; that these columns supported cross-girders or framework, upon which were laid four single railroad tracks, or two double railroad tracks, and that the railroad of the defendant has ever since the erection of the structure been, and still is, operated upon these tracks, and that the superstructure extends out on either side, so that the western line thereof approaches the eastern or building line of plaintiff's premises within twelve feet, more or less; that these structures are of a permanent nature, and are built and intended by the defendant to be used permanently for the transportation of freight and passengers; "that large numbers of freight and passenger trains daily pass in front of plaintiffs' premises, and produce a flickering and darkening of the light, and deprive and have hitherto deprived plaintiffs of the beneficial use of such light as comes to said premises, and interferes with the air, ventilation, and access to said premises, and the privacy thereof; that said structure, as it now exists, and as above described, has been erected and maintained without legal right, and is a special injury to plaintiffs and their premises; that the operation of said railroad is not an ordinary street use of said street authorized by law; that on the road thus constructed the defendant every day ran, and still does run, many trains of cars; that said railroad and structure greatly obstructed, and still do greatly obstruct, said premises and the passageway to and from said buildings; that they excluded, and still do exclude, light and air from the same; that the trains made, and still do make, loud and disagreeable noises, caused, and still do cause, vibrations of the buildings erected on said premises, whereby the security of such buildings is greatly impaired and their strength lessened, and injured, and still do injure, said buildings, and said trains and said structures injure and impair plaintiffs' easements of light, air, and access; that the value of the use and occupation of said premises has thereby been greatly damaged."

The petition further avers that the aforesaid structure and the railroad of the defendant impose a new and additional burden on the property of the plaintiffs, and one which was not within the power of the city of St. Louis to authorize, without compensating plaintiffs for their property thus taken and damaged; that no compensation has ever been made for the aforesaid taking and damage of plaintiffs' property; that the rental value of said property has been greatly damaged, to wit, to the extent of $2,500 per annum, by the construction and operation of defendant's railroad in said street; and that the property itself has been permanently damaged, in the sum of $25,000.

That the city of St. Louis did heretofore, to wit, on July 9, 1887, adopt an ordinance which undertook to authorize the construction of defendant's railroad, and the use of the streets therefor, which said ordinance is set forth in full in the petition, and which, among other things, required the construction of said railroad to be commenced within one year after the approval of the ordinance, and to be completed within five years from February 3, 1887, and which said ordinance was subsequently amended by another ordinance, approved December 21, 1889; that the defendant, with the view of availing itself of the provision of said ordinance, and claiming to act under the same, has constructed its road as aforesaid; and that said ordinance is in conflict with article 2, § 21, of the Constitution of this state, and also in conflict with article 2, § 30, of the Constitution of this state, and also in conflict with the fourteenth amendment to the Constitution of the United States; "that plaintiffs' property has been taken and damaged for the uses of defendant's railroad as herein set out, without just compensation; that plaintiffs have been deprived of their property by the defendant, without due process of law;" and that the construction of the railroad of the defendant was completed in May, 1890, and the railroad been operated ever since that time; and that the operation of the road will continue, unless restrained by order of this court.

The petition then prays that the damages of the plaintiffs may be ascertained and determined, and that they may have judgment therefor, to wit, for the sum of $25,000; also that the defendant may be enjoined from further obstructing and incumbering the aforesaid street, and also from maintaining, continuing, or operating its railroad and structure in front of the premises of the plaintiffs; and further be required to remove said structure in front of plaintiffs' property, unless, within such time as should be fixed by the court, the defendant pay to plaintiffs a sum of money sufficient to compensate the plaintiffs for their property taken, and for the permanent injury and damage done thereto, by reason of the aforesaid acts of the defendant.

It is stated by counsel that the action of the trial court in sustaining the demurrer to the petition of the plaintiffs was predicated exclusively on the theory that the cause of action of the plaintiffs was barred by the statute of limitations, in that it appeared from the face of the petition that the action was not instituted within five years after the completion of the defendant's railway, but this is not disclosed in the record, and we cannot take notice of the reasons which moved the circuit court to sustain the demurrer.

1. As said by Judge Andrews, for the Court of Appeals of New York, in Kane v. N. Y. E. R. R. Co., 125 N. Y. 175, 26 N. E. 278, 11 L. R. A. 640: "Few questions have come before the...