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

• Decision Date: 06 February 1877
• Citation: 3 Mo.App. 315
• Parties: ATLANTIC & PACIFIC RAILROAD COMPANY, Respondent, v. CITY OF ST. LOUIS et al., Appellants.
• Court: Missouri Court of Appeals

3 Mo.App. 315

ATLANTIC & PACIFIC RAILROAD COMPANY, Respondent,

v.CITY OF ST. LOUIS et al., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 6, 1877.

1. The amended charter of the Pacific Railroad Company gave the right to construct a road “from the Mississippi River, or any point in the city of St. Louis,” and its charter required that its roads should be commenced within seven years and completed within ten years thereafter. The company chose the point at which it would commence, and built its road westward from that point. Held, that, having maintained that location for twenty years, it could not then change its terminus; and that, having failed to build its branch roads within the time prescribed, it could not build a branch road to continue from its terminus eastward to the Mississippi River, nor treat a track laid between these points as a mere switching or spur track.

2. A public highway is the property of the people of the whole State, and may be disposed of by their representatives at their pleasure. The Legislature may authorize the building of a railroad over and along the streets of a city, but the city whose streets are thus taken may regulate and control the operation of such road within its limits.

3. Since the adoption of the Constitutions of 1865 and 1875, the Legislature of Missouri has no power to grant to an individual or corporation the right to construct or operate a railroad within any city without first obtaining the consent of the local authorities.

4. A railroad company cannot accept a license from a municipal corporation and operate its road thereunder, and then, after having delivered possession to its licensor treat it as a trespasser.

5. The parties to an action which was dismissed by plaintiff before final judgment are not concluded by the record therein.

APPEAL from St. Louis Circuit Court.

Judgment reversed and injunction dissolved.

S. Reber, for appellants, cited: 2 Dill. on Mun. Corp., 2d ed., 623, secs. 520, 521; Redf. on Rys., 3d ed., 391, sec. 105, p. 589, sec. 142 et seq.; Acts 1870, pp. 90, 91; Acts 1871, p. 66; 14 U. S. Stat. at Large, 292; McPheeters v. Meremac Bridge Co., 28 Mo. 465; People v. Duncan, 41 Cal. 507; Big. on Estop. 372, 384, 386, 387, 401, 412; Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 358; Pearcy v. Calais R. R. Co., 30 Me. 498; Acts 1863 (Adj. Sess.), 478.

J. N. Litton, for respondent, cited: Acts 1851, p. 268; Acts 1849, p. 219; Acts 1863, p. 478; Porter v. North Missouri R. R. Co., 33 Mo. 137; Lackland v. North Missouri R. R. Co., 34 Mo. 259; Presbury v. Old Colony, etc., R. R. Co., 103 Mass. 6; Slatten v. Des Moines R. R. Co., 29 Iowa, 153; Hatch v. Vermont Central R. R. Co., 25 Vt. 67; 2 Dill. on Mun. Corp. 622, secs. 519, 555-557, note 1; Hannibal & St. Joseph R. R. Co. v. Winder, 49 Mo. 165; Cleveland & Pittsburg R. R. Co., 56 Pa. St. 325; Black v. City of Philadelphia, 58 Pa. St. 252; Chicago, etc., R. R. Co. v. Wilson, 17 Ill. 123; Low v. Galena, etc., R. R. Co., 18 Ill. 324; Eldridge v. Smith, 34 Vt. 484; Protzman v. Indiana R. R. Co., 9 Ind. 469; Farmers' Loan & Trust Co. v. Curtis, 3 Seld. 470; Chouquette v. Barada, 33 Mo. 259; St. Louis Public Schools v. Risley, 28 Mo. 419; Jones v. Dana, 24 Barb. 398; Martindale v. Kansas City, etc., R. R. Co., 60 Mo. 510; City v. Shields, 60 Mo. 251, 252; Land v. Coffman, 50 Mo. 255; Ang. & Ames on Corp., sec. 224; Koehler v. Black, 2 Black, 717; Lovett v. Steam Saw-mill Assn., 6 Paige, 60; Taggart v. West Maryland R. R. Co., 24 Md. 596; Cooley's Const. Lim. 252; City of Lexington, 14 Wall. 296; Bissell v. City of Jefferson, 24 How. 287.

BAKEWELL, J., delivered the opinion of the court.

This was a proceeding to enjoin and restrain the city of St. Louis, the mayor, and the city engineer from tearing up a railroad track on Poplar Street, between Ninth Street and the Levee, in St. Louis, and from interfering with the use of the track by respondent for the purpose of its business as a railroad corporation carrying freight and passengers for hire.

It appears from the pleadings and evidence that the Pacific Railroad Company, in 1849, under a charter from the State, began constructing a railroad-track, from a point in the city of St. Louis a few hundred feet west of Seventh Street, to Franklin, west. The depot and terminus of the road was on the west side of Seventh Street, and remained at that point until July, 1870. On April 9, 1870, the Pacific Railroad Company petitioned the City Council of St. Louis for permission to extend its track eastwardly along Poplar Street to the Levee, so as to connect with the track of the North Missouri Railroad at that point, and have access to the grain elevator and the river. It asked that this privilege be granted to it on these conditions: that the railroad would be responsible for all damages caused by moving of trains; that the privilege should expire on January 1, 1872; and the Council should impose such restrictions as public and private interests might require. In consequence of this petition the City Council passed ordinance 7329, on July 8, 1870, authorizing the Pacific Railroad Company to lay a single track on Poplar Street, from Ninth Street to the Levee, and along the Levee to the elevator, under the supervision of the city engineer, in such a manner as not to obstruct the use of the street for general purposes; the Pacific Railroad Company first to execute a bond for $250,000, conditioned to pay all damages to any person injured by the construction, maintenance, or operation of the road over this new track, and to save the city harmless. The terms were accepted, the bond executed, and the track laid. It was further agreed that if the railroad company did not take up the track by January 1, 1872, and restore the street to its former condition, the city engineer should do this at the expense of the railroad company. On January 26, 1872, at the request of the railroad company, an ordinance, No. 7897, was passed, extending these privileges to January 1, 1873, a bond to be executed by the road, conditioned as before. On February 20, 1872, the Pacific Railroad Company declined to accept the provisions of the new ordinance, and notified the city of that fact, and tore up its track between Eighth and Ninth Streets, at the Fifth Street crossing, and near the elevator, leaving breaks of several feet at these three points. The track remained in this condition for some weeks, when the Pacific Railroad Company relaid the track at the points at which it had taken up the rails in accordance with a resolution of the board of trustees of February 10, 1872. On March 27, 1872, the city commenced suit against the Pacific Railroad Company, to restrain it from maintaining and operating this track on Poplar Street, on the ground that it was a dangerous nuisance; an answer and reply were filed, but the cause was never tried, but was dismissed by the city. On June 29, 1872, a lease was executed by the Pacific Railroad Company to respondent, by which respondent claims to have acquired all the franchises of that road, and under which it took possession of the property of the Pacific Railroad Company, and operated one continuous road from St. Louis to the Indian Territory, and used the Poplar Street track.

In July, 1873, the City Council of St. Louis, by ordinance, declared the use and occupation of Poplar Street by respondent, and the track on that street, a public nuisance, and forbade its use, and required respondent to take it up, failing which, the ordinance directs its removal by the city engineer, under the direction of the mayor. In obedience to this ordinance the city engineer, by direction of the mayor, tore up the track, which was at once relaid by respondent; and on August 13, 1873, respondent instituted this suit.

It is claimed by respondent that the extension of the road from Ninth Street east was not made under ordinance 7329, which granted, respondent says, no privileges, but was a simple recognition, on the part of the city, of the rights of respondent derived from legislative enactments independent of the ordinance.

There was evidence tending to show that the track along Poplar Street destroyed the use of the street for any purpose of business. There was also evidence tending to show that the track was badly constructed and badly kept, and that trains passed over it at all hours at a dangerous rate of speed; that its use was a constant source of danger, and rendered the houses on Poplar Street unsafe and untenantable by the concussion. There was also evidence tending to show that the track was well laid and well kept, and the trains carefully run, with proper watch at the crossings. It was shown that Poplar Street was twenty-one feet wide from curb to curb; that the width of a locomotive-engine or of an ordinary railroad-car is nine feet; that of a dray, seven feet ten inches; and that of an ordinary wagon, six feet nine inches.

The act of Congress of July 27, 1866, incorporating plaintiff, the act of the General Assembly of the State of Missouri of March 12, 1849, incorporating the Pacific Railroad Company, and the acts amendatory of and supplementary thereto, of March 1, 1851, and of February 24, 1853, were offered in evidence, as were many other private acts, and some documentary evidence. These, so far as may be necessary, will be set out or referred to in the course of this opinion.

There was an interlocutory decree for plaintiff, granting the prayer of the petition, with this modification, that in the use of its track it should not interfere with the enforcement of any lawful police regulation of the city. On final hearing the injunction was made perpetual. The defendants appeal to this court.

The right and duty of a municipal corporation, and especially of the city of St. Louis, to control the use of the public streets within its limits, to remove obstructions, and to protect the general public in its right to use the streets for the...