Applegate v. Director General of Chicago, R. I. & P. Ry. Co.

• Decision Date: 13 December 1920
• Docket Number: No. 13694.,13694.
• Citation: 205 Mo. App. 611,226 S.W. 628
• Parties: APPLEGATE v. DIRECTOR GENERAL OF CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Court of Appeals

226 S.W. 628

205 Mo. App. 611

APPLEGATE v. DIRECTOR GENERAL OF CHICAGO, R. I. & P. RY. CO.

No. 13694.

Kansas City Court of Appeals. Missouri.

December 13, 1920.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

Action by Thomas H. Applegate against the Director General of Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Luther Burns, of Topeka, Kan., and A. G. Knight, of Trenton, for appellant. Wilkerson & Barnett, of Sedalia, for respondent.

ELLISON, P. J.

Plaintiff's action is based on the charge that defendant injured his residence property in the city of Trenton by excavating a "cut" between 30 and 40 feet in depth and laying railway tracks therein in front of such property, though not abutting thereon. He recovered judgment in the circuit court.

It appears that defendant's tracks entered the city of Trenton by way of a deep and and long curve, and being upgrade made it difficult for trains entering the city. To relieve this situation by straightening the track and reducing the grade, defendant, first securing the vacation of certain streets by the city council, excavated a cut of great depth and length, beginning at ___ street, running in a northerly direction to ___ street, passing near by the front of plaintiff's premises, leaving only Chestnut street between him and the excavation.

Plaintiff's property consisted of lots 2 and 3 in block 7, fronting east on Chestnut street and running through to Cedar street in the rear. He was thus left on what the parties call an "island," lying between the abandoned curve and the new excavation and track, and being out in the residence section of the town, 10 or 12 blocks from the main business center, his access to such business part was cut off except by way of Chestnut street on which he fronted, and direct access to the residence section was cut off east or north, except by going 2½ blocks south and then back a like distance. It will be observed that plaintiff's property was not cut off from other sections of the town, but access to such sections was only made more inconvenient with the excavation than without it.

As we have stated above, plaintiff's property did not abut on the new cut; it abutted on Chestnut street, and that street was between it and the edge of One new cut. Nor did plaintiff's property abut on Twenty-Fourth and Twenty-Fifth streets; it was "inside" property, lying between those streets, but separated from them by other property. Now it is the general rule that the property claimed to be injured by an obstruction to one or more streets must abut on such streets. Glasgow v. St. Louis, 107 Mo. 198, 204, 205, 17 S. W. 743.

But there are conditions and situations in which to apply the rule would be a manifest denial of justice; and it is said that an abutting is not "always essential to a recovery. Thus property may not be on the street, yet may communicate with it by means of private way." Rude v. St. Louis, 93 Mo. 408, 415, 6 S. W. 257. An interesting case arose in Massachusetts, in which the exception to the rule is stated. The court said that:

"Ordinarily, on discontinuance of a street, only those persons whose property abuts on the part discontinued suffer special and peculiar damages. Commonly such persons are the only ones whose property is cut off from access to the world outside. If this access is only made less convenient by the necessity of using some other part of the highway, instead of the part discontinued, their inconvenience in that particular is of the same kind as that of the public generally. But if their access from their property to the general system of public highways of the city or town is cut off altogether, the case is different. It has repeatedly been recognized that in such a case they may suffer special and peculiar damages. The right to recover such damages, even though the property does not abut on the discontinued portion of the way, is recognized by Chief Justice Shaw in the last paragraph of the opinion in Smith v. Boston, 7 Cush. 254, and by Mr. Justice Charles Allen in Davis v. County Commissioners, 153 Mass. 218, 223. See, also, Castle v. Berkshire, 11 Gray, 26; Stanwood v. Malden, 157 Mass. 17, 18. It never has been held that one whose access to a general system of public streets in a city or town is entirely cut" off suffers only the same kind of damage by the discontinuance of a street as one of the public who is merely obliged to travel further through public streets to reach his destination. So to hold would be to extend too far the doctrine previously stated in this opinion, which as now established sometimes causes hardship, although it rests on sound principles and generally accomplishes justice." Putnam v. Boston & Providence Railroad, ...