Kansas City Interurban Ry. v. Davis

• Decision Date: 20 June 1906
• Parties: KANSAS CITY INTERURBAN RY. v. DAVIS et al.
• Court: Missouri Supreme Court

95 S.W. 881

197 Mo. 669

KANSAS CITY INTERURBAN RY. v. DAVIS et al.

Supreme Court of Missouri.

June 20, 1906.

1. RAILROADS — LOCATION OF ROAD — FILING PROFILE MAP.

Rev. St. 1899, § 1056, requiring a railway company, before constructing any part of its road, to file a profile map in the office of the county clerk of the route intended to be adopted in that county, is not satisfied with a profile map of a part or section of the route in the county.

2. SAME — ABANDONMENT OF CHARTERED ROUTE.

A railroad corporation has no right to willfully abandon any part of its chartered route, notwithstanding Rev. St. 1899, § 1161, declaring that, if a company does not begin the work of construction within two years and finish it within ten years, it shall forfeit its corporate charter, provided that, if the company has in the meantime built a portion of its road, it may retain and operate that portion.

3. EMINENT DOMAIN — CONDEMNATION OF RAILROAD RIGHT OF WAY — EVIDENCE.

Where a railroad company seeks to condemn land for a railway from Kansas City to Swope Park, relying on a charter to build a road from Kansas City to Lees Summit, the burden is on the company to show that Swope Park is on the line of the chartered route from Kansas City to Lees Summit.

4. SAME — ABANDONMENT OF LOCATION.

Where a railroad charter authorized the construction of a road from Kansas City to Lees Summit, it is not authorized to condemn land for a road from Kansas City to Swope Park, even if Swope Park be on the line between Kansas City and Lees Summit, where the whole record shows a purpose only to build to Swope Park.

5. SAME — CONDEMNATION PROCEEDINGS — APPEAL — PRESUMPTIONS.

Where a petition in condemnation proceedings alleges that a railroad charter authorized the construction of the road from Kansas City to Swope Park, and that a profile map of "said railroad" had been filed in the office of the clerk of the county court, but the evidence showed that the charter was for a road from Kansas City to Lees Summit, the failure of the property owners on appeal to incorporate in the record the profile map which was introduced in evidence does not raise the presumption that it was in compliance with the charter.

6. SAME — PRESENTATION OF QUESTIONS IN LOWER COURT — PLEADING.

In condemnation proceedings by a railroad, where the answer alleges that the petition does not aver that the owners of all parcels of land sought to be condemned, lying within the county, have been made parties defendant, the objection that it is not alleged that no agreement could be made between the railroad company and those who were not made parties cannot be first made on appeal.

7. EMINENT DOMAIN — CONDEMNATION PROCEEDINGS — PARTIES.

Rev. St. 1899, § 1264, providing that in proceedings to condemn land the owners of all such parcels as lie within the county or circuit shall be made parties defendant, providing that it shall not be necessary to make any persons parties defendant unless they are either in actual possession of the premises to be affected or have a title appearing of record, is mandatory, and not to be construed as merely directory, in order to harmonize with section 1267, providing that any number of owners resident in the same county or circuit may be joined in one petition.

In Banc. Appeal from Circuit Court, Jackson County; Andrew F. Evans, Judge.

Action by the Kansas City Interurban Railway against William H. Davis and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

James F. Mister and Wash Adams, for appellants. Moore & Handy, for respondent.

VALLIANT, J.

The plaintiff railroad company is seeking by this proceeding to condemn a right of way for its road through certain land of defendants in Jackson county. On filing the petition, commissioners were appointed to assess the defendants' damage, and in due time they made their report, assessing the value of the property taken at $800 and the damages to the remaining property at $250. Exceptions to the report were filed by defendants, which coming on to be heard, upon the pleadings and evidence, were by the court overruled, and a judgment of condemnation accordingly was entered, from which judgment the defendants have taken this appeal.

There are two points of chief importance presented for our consideration. The first is the insistence that the plaintiff has no corporate franchise to build a railroad between the termini stated in the petition; the second, that the owners of all the lands within the county to be taken for the plaintiff's right of way, with whom the plaintiff has been unable to agree on the compensation to be paid, are not made parties defendant to the suit.

1. In the petition the plaintiff states that it is a corporation "organized under the laws of Missouri, with full power and authority to construct, maintain, and operate a standard-gauge railroad for public use in the conveyance of persons and property in the state of Missouri from a point commencing at or about Forty-Eighth street and Main street in Kansas City, Jackson county, Mo., to a point in Swope Park, in said Jackson county, Mo., in section 11, township 48, range 33, across and over the tract of land hereinafter mentioned; that the general direction of said line of railroad built and to be built by your petitioner from said beginning point is easterly and southerly." The petitioner then goes on to state that the plaintiff had made and filed in the office of the county clerk a profile map of the route proposed and intended to be used in the construction and operation of "said railway," etc. Then follows a statement that the defendants are the owners of a certain tract of land through which it is proposed to construct the road and a description of the land, after which it is stated that the general course of the proposed road is northeasterly through this land, and that it is "an extension of the petitioner's line of railway from said beginning point above mentioned." On the trial the plaintiff, to prove its corporate authority to do what it was seeking to do, introduced in evidence its charter, from which it appeared that it was organized as a railroad corporation under the laws of this state, that "Kansas City, in Jackson county, Mo., and Lees Summit, in Jackson county, Mo., are the places from which and to which the road is to be constructed, maintained, and operated," and that its length was to be 20 miles. When this proof was made the defendants moved to dismiss the proceeding, for the reason, among others, of the discrepancy between the road proposed in the petition and that authorized by the charter. The motion was overruled, and exception taken.

The power given to a railroad company to condemn private property for its own use is to be exercised within strict limits. The law does not authorize the incorporating of a company with a roving commission to go to any points in the state at will and condemn land in spots. It is required of the parties seeking to be incorporated as a railroad company that they state in their articles of association the places from and to which the road is to be constructed, and beyond the course between the points named (except as the law authorizes branches) the corporation has no right to go. Under a charter to build a road from St. Louis to Kansas City, the corporation would have no authority to build a road from St. Louis to Springfield; nor would a company which is chartered to build a railroad from Kansas City to Lees Summit be authorized to build one from Kansas City to Swope Park. The plaintiff's charter calls for a line approximating 20 miles in length from a point in Kansas City to Lees Summit. That does not mean, of course, a straight line of exactly 20 miles in length; but it does mean a line with only reasonable meanders and reasonably approximating the length named in the charter, and the law contemplates that the company, when it exercises the power of eminent domain, intends in good faith to build the road its charter calls for. Section 1056, Rev. St. 1899, requires the company, before constructing any part of its road, to file a profile map in the office of the county clerk of the route intended to be adopted in that county. That requirement of the statute is for the information of all concerned, especially those whose lands are to be taken, and the law is not satisfied with a profile map of a part or a section of the route in the county. A railroad corporation has no right to willfully abandon any portion of its chartered route. The right conferred carries the obligation to perform. Section 1161, Rev. St. 1899, declares that, if the company does not begin the work of construction within two years and finish it within 10 years, it shall forfeit its corporate existence and its powers shall cease. Then follows a proviso that, if the company has in the meantime built a portion of its road, it may retain and operate that portion. That proviso comes only as a modification of the forfeiture prescribed in the main...