Bourg v. Manufacturers' Ry. Co.

• Decision Date: 28 August 1922
• Docket Number: No. 22711.,22711.
• Parties: BOURG et al. v. MANUFACTURERS' RY. CO.
• Court: Missouri Supreme Court

245 S.W. 43

BOURG et al. v. MANUFACTURERS' RY. CO.

No. 22711.

Supreme Court of Missouri, Division No. 2.

August 28, 1922.

Motion for Rehearing Denied October 9, 1922.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Suit by Gertrude E. Bourg and others against the Manufacturers' Railway Company. Judgment of dismissal and plaintiffs appeal. Affirmed.

Wilbur B. Jones, of St. Louis, for appellants.

Nagel & Kirby and E. P. Griffin, all of St. Louis, for respondent.

WALKER, J.

This is a suit in equity, brought by plaintiffs against the defendant for damages alleged to have been sustained by the plaintiffs by reason of the laying by defendant of a railroad track on Second street in the city of St. Louis opposite property owned by plaintiffs. The gravamen of the action is to ascertain and recover damages for the injury alleged to have been caused to the plaintiffs by the laying of the track, and to restrain the defendant from maintaining this track and operating its cars thereon, and that it be compelled to remove same unless it pays the plaintiffs the amount of damages that may be adjudged to be due plaintiffs for the permanent injury by reason of the wrongful act of the defendant. On a trial before the circuit court of the city of St. Louis, there was a judgment for the defendant, and plaintiffs' petition was dismissed. From this judgment, they have appealed.

The lot owned by the plaintiffs is located at the southwest corner of Second and Plum streets in said city. This property has a frontage of 70 feet on Plum and 44 feet on Second street. There is a three-story brick building on the lot, occupied on the ground floor by plaintiffs as a soft drink parlor. The other stories, except as used by plaintiffs to reside in, are let to tenants for residential purposes. The tracks complained of are laid on a concrete base. The locomotives used all have smoke consumers, and a part of the road has been electrified. The right to lay these tracks was granted to the defendant by the city of St. Louis by an ordinance approved April 8, 1905. The laying of the tracks was under the supervision and inspection of the board of public service of the city of St. Louis and its engineers, with the full approval of said board.

On Plum street, where there are no tracks, the plaintiffs have two entrances to their building. On Second street, there is room for a truck, such as is mentioned in the testimony, to stand between the curb and a locomotive or a car on the railroad track.

The validity of the ordinance which authorized the laying of these tracks on Second street was contested by certain citizens in 1910, resulting in a finding against their contentions. Upon an appeal to the Supreme Court, this finding was affirmed. Seibel-Suessdorf Copper Co. v. Manufacturers' Ry. Co., 230 Mo. 59, 130 S. W. 288.

The district in which the building is located is largely industrial and manufacturing in its nature; there being but few people residing therein. The evidence is somewhat contradictory as to the extent to which the use of Second street by the defendant's locomotives and cars impedes or prevents its use for other purposes. There is no substantial evidence that the business of plaintiffs has been reduced in volume by reason of the building of the tracks and the use of same for railway purposes. The finding of the trial court was to the effect that, instead of injuring, the laying of the railroad track and the use thereof by the defendant tended because of the increase of industrial enterprises in the vicinity, to enhance the market value of the property rather than to lessen it.

I. Construed under well-recognized rules of pleading, the petition herein pleads an action sounding in damages rather than a proceeding in equity. Aside from the general tenor of the allegations, definitive color is given to this conclusion by the plaintiffs' tacit admission that a pecuniary judgment will compensate them for the injury alleged to have...