Atl. & Pacific R.R. Co. v. City of St. Louis

• Decision Date: 31 October 1877
• Citation: 66 Mo. 228
• Parties: ATLANTIC & PACIFIC R. R. Co., Appellant, v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

66 Mo. 228

ATLANTIC & PACIFIC R. R. Co., Appellant,

v.CITY OF ST. LOUIS et al.

Supreme Court of Missouri.

October Term, 1877.

[COPYRIGHT MATERIAL OMITTED]

Appeal from St. Louis Court of Appeals.

This was a suit for an injuction brought by the Atlantic & Pacific Railroad Company against the city of St. Louis, its mayor, city engineer and other officers, agents and servants, to restrain them from tearing up or otherwise interfering with a railroad track which had been laid down by the plaintiff company in Poplar street and on the Levee in that city. Plaintiff claimed that it derived the right to lay and maintain the track from the charter of the Pacific Railroad Company, through a lease which it had taken of the road, property and franchises of that company. The charter of that company, granted by the Legislature in 1849, contained, among others, the following provisions:

Sec. 7. Said company shall have full power to survey, mark out, locate and construct a railroad from the city of St. Louis to the city of Jefferson, and thence to some point in the western line of Van Buren county, in this State; * * and may extend branch railroads to any point in any of the counties in which said road may be located.

Sec. 11. Said company may build said road along or across any State or county road, or the streets or wharves of any town or city, and over any stream or highway.

Sec. 12. Said company shall commence the construction of said road within seven years, and shall complete the same within ten years thereafter. Sess. Acts 1849, pp. 220, 221.

Section 7 was afterwards amended so as to read as follows: Said company shall have full power to survey, mark out, locate and construct a railroad from the Mississippi river or any other point in the city of St. Louis on any route the said company may deem most advantageous, to any point on the western line of the State, which the company may select. Sess. Acts 1850-51, p. 272, § 9.

In 1852 further amendments to the charter of said company were made by an act, of which section 1 vested in the Pacific Railroad Company the title to all the lands granted by the United States to the State of Missouri for railroad purposes, by the act of Congress of June 10th, 1852, so far as the same were applicable.

Section 2 authorized said company to lay out, construct and maintain a line of railway or branch railroad from any point on the main line of the Pacific railroad east of the Osage river, to any point on the western boundary of the State south of the Osage river, which the company might select.

Section 3 required the company to proceed as soon as practicable to locate said southwestern line or branch railroad, and to locate and select the lands granted by Congress.

Section 4 required the company to apply said lands to the construction of the main line from its commencement in the city of St. Louis to the point of divergence of the southwestern branch, and to the southwestern branch.

Section 9 authorized the Governor to issue bonds of the State to be used in building said branch road, and reserved to the State the right to sell the road in case of default in the payment of either principal or interest of said bonds. Sess. Acts 1852, p. 10.

In 1864 the General Assembly passed an act authorizing the Pacific and other railroads to connect their lines in the county of St. Louis, and to lay switches to unload freight into the St. Louis Grain Elevator, whenever the boards of directors of said roads should agree and find it to the interests of their roads, and for that purpose authorized them to lay a track on the Levee or Front street, and authorized them to condemn the right of way over any land necessary for such tracks in conformity with their respective charters.

Under these several acts the Pacific Railroad, prior to 1870, had built and operated a main line from Seventh street, in the city of St. Louis, to Kansas City, and a branch from Franklin, a station on the main line thirty-five miles west of St. Louis, in a southwestwardly direction towards Springfield. Bonds had been issued by the State under the act of 1852, to aid in the construction of this southwest branch. The company having made default in the payment of interest due upon these bonds, the State, in 1866, declared a forfeiture of the branch road and all the franchises, privileges and rights appertaining to the same, (Sess. Acts 1866, pp. 107, 115), and ordered the road to be sold, the purchaser being required to complete the road by way of Springfield to the western boundary of the State. (Ib., p. 111, § 7). Under this act the road was sold to Fremont, and the name was changed to the Southwest Pacific Railroad Company.

In 1868 this road, and its franchises, were again declared forfeited to the State, and were sold by the State to Kingsland and certain other persons, who were required to form themselves into a body politic and corporate under the general laws of the State; said corporation, when formed, to be known as the South Pacific Railroad Company. (Sess. Acts 1868, p, 118). This company completed its road as far as Springfield.

On the 27th of July, 1866, the plaintiff, the Atlantic & Pacific Railroad Company was chartered by an act of Congress to build a railroad from Springfield, Missouri, to the Pacific Ocean. 14 U. S. Stat. at Large, 292.

By the second section of the act, a portion of the public lands were granted to the company to aid in the construction of the road, and it was provided, that if the route of the road should be found to be upon any other railroad route, to aid in the construction of which lands had been previously granted by the United States, as far as the routes were upon the same general line, the amount of land previously granted should be deducted from the amount granted by the act; provided that the company receiving the previous grant might assign their interest to the Atlantic & Pacific company, or might consolidate, confederate and associate with said company; and it was further provided that the Atlantic & Pacific company might avail itself of any power or franchise that might be conferred on it by any State. At that time the Southwest Branch was entitled to the land grant conferred by the act of Congress of June 10th, 1852, and the act of the Legislature of December 25th, 1852.

The Atlantic & Pacific company proceeded, under its charter, to build its road from Springfield southwestwardly into the Indian Territory. On the 26th of October, 1870, the South Pacific Company sold to the plaintiff the road from Franklin to Springfield, with all its rights, privileges and franchises, and made a deed to the same under the seal of the corporation, and signed by the proper officers. It did not appear at the trial whether the stockholders of the South Pacific company assented to the sale or not.

On the 29th of June, 1872, the plaintiff company, pursuant to the provisions of the act of March 24th, 1870, took a lease of the Pacific railroad, with all its property, rights, privileges and franchises. The latter company had at first located its depot in the city of St. Louis at Fourteenth street, fourteen blocks west of the Mississippi river. It afterward extended its road seven blocks eastward, and nearer to the river, and built its depot at Seventh street. This was the eastern terminus of the road for more than ten years prior to 1870. In that year the Pacific railroad solicited and obtained from the city council of the city of St. Louis an ordinance granting permission to the company to lay and maintain a track branching off from its main track at a point near Ninth street, a few hundred feet west of its Seventh street depot, and running along Poplar street eastwardly to the Levee or Front street, at the Mississippi river, and thence northwardly along the Levee to the St. Louis Grain Elevator, a distance of nearly a mile. The track was built accordingly. The general direction of the Pacific railroad is from east to west. Between Ninth and Seventh streets the main track and Poplar street track are only a few feet apart.

This ordinance provided that this track should be removed at the end of two years. When the two years were about to expire, the company requested the city government to extend the time for one year longer. The city council thereupon passed an ordinance extending the time. This ordinance, however, contained provisions to which the company objected, and plaintiff, having in the meantime become lessee of the road, notified the city that it declined to accept the ordinance, tore up the track in several places, and discontinued its use.

After the lapse of three weeks it repaired the track, and began to use it again. The city council thereupon, passed an ordinance declaring the track a nuisance, and making it the duty of the executive officers of the city to remove it in case the company failed for thirty days to remove it themselves. The city engineer, acting under the orders of the mayor, was proceeding to execute this ordinance, when plaintiff sued out a preliminary injunction in the circuit court. On a final hearing, this was made perpetual by the court at special term, and that decree was affirmed in general term. On appeal to the Court of Appeals there was a reversal, and plaintiff appealed to this court.Thomas J. Portis for appellant.

1. The Pacific railroad was authorized to build, maintain and operate this track at the time and place it did. Sess. Acts 1849, p. 219, § 11; Acts 1851, p. 268, § 9; Acts 1863, Adj. Sess. p. 478, §§ 1, 2; Ib., p. 50, § 14. Porter v. N. Mo. R. R., 33 Mo. 137; Lackland v. N. Mo. R. R. 34 Mo. 259.

2. The fact of the company laying its track according to the ordinance of 1870, did not amount to an acceptance of a license, or a waiver by the company of the rights secured by its charter. The streets belong to and are in possession of the State and all the citizens of the State--one person as much as another owns and has possession of the streets in question, and...