Brown v. Chicago Great Western Railway Company

• Citation: 38 S.W. 1099,137 Mo. 529
• Parties: Brown et al. v. Chicago Great Western Railway Company, Appellant
• Decision Date: 09 February 1897
• Court: Missouri Supreme Court

38 S.W. 1099

137 Mo. 529

Brown et al. v. Chicago Great Western Railway Company, Appellant

Supreme Court of Missouri, First Division

February 9, 1897

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Reversed.

Culver & Davis and Brown & Pratt for appellant.

(1) A use is public when the public has a right to enjoy it though it may in fact be enjoyed by a single person or establishment only. The character of a use can not be determined by considering the number who are likely to be accommodated. If a use is open to all on like conditions it is public even though it may be restricted to a particular locality or may accommodate but one or two persons. Township v Hackman, 48 Mo. 243; Dietrich v. Murdock, 42 Mo. 279; Railroad v. Porter, 43 Minn. 527; Railroad v. Railroad, 43 N.W. 469; Philips v Watson, 63 Iowa 28; Wiggins Ferry Co. v Railroad, 107 Ill. 450. (2) By act of the legislature cities of the second class are empowered to direct and control the laying and construction of railroad tracks in streets and alleys. Subdiv. 36, sec. 1225, art. 3, R. S. 1889. (3) When the construction of a railroad track on an established grade in a public thoroughfare is authorized by a municipal government having the power so to do, and the track is so constructed, such elements of damage as necessarily flow from its careful operation are not damages within the meaning of section 21, article 2, of the constitution. Lackland v. Railroad, 31 Mo. 180; Porter v. Railroad, 33 Mo. 128; Randall v. Railroad, 65 Mo. 325; Cross v. Railroad, 77 Mo. 318; Railroad v. Railroad, 97 Mo. 469; Smith v. Railroad, 98 Mo. 24; Gaus Mfg. Co. v. Railroad, 113 Mo. 308. (4) The mere retardation of access to plaintiffs' premises occasioned by the passing of trains over the track was not damages within the meaning of the constitution. Julia Building Ass'n v. Bell Tel. Co., 88 Mo. 258; Railroad v. Railroad, 97 Mo. 457. (5) If the construction and operation of the track was actionable at all, plaintiffs' recovery should have been made to depend upon the question as to whether or not their property had sustained damages special to it and not shared by it with other property in the same community. Unless such damages were so sustained plaintiffs were not entitled to recover. Rude v. St. Louis, 93 Mo. 154; Fairchild v. St. Louis, 97 Mo. 85; Van de Vere v. City of Kansas, 107 Mo. 91.

Chas. F. Strop for respondents.

(1) A municipal corporation can not authorize the construction and operation of a steam railroad through a street or alley so narrow that such use will destroy it as a public way and deprive the abutting owner of access to his property. Lumber Co. v. Railroad, 129 Mo. 455; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Lockwood v. Railroad, 122 Mo. 86; Dubach v. Railroad, 89 Mo. 483. (2) The spur track or switch complained of in this case was not constructed for public purposes. Glaessner v. Brewing Ass'n, 100 Mo. 508. (3) The construction of the track and the operation of cars thereon under the circumstances shown in this case, constituted a new and additional use of the alley in question, and plaintiff is entitled to recover. Elliott on Roads and Streets, 526-530, and authorities there cited.

OPINION

Macfarlane, J.

Plaintiffs are the owners of a lot on the corner of Third and Isidore streets in the city of St. Joseph, having a frontage of forty feet on the former and one hundred and forty feet along the latter. On this lot they have two double dwelling houses, one fronting east on Third street, and the other fronting north on Isidore street. Along the west end of the lot is a public alley twenty feet in width. The west side of the dwelling that fronts on Isidore street comes very nearly to the east line of the alley.

The defendant is a railroad corporation, and maintains and operates a railroad into the city of St. Joseph. Its line and station thereon is located about one block north of plaintiffs' property.

The alley extends from the railroad track south through four blocks and across four streets to Jules street. On the block north of Jules street is located the wholesale house of Richardson, Robertson & Burns. There is also along or near the alley a bottling plant, wood yard, and perhaps other small business industries. Most of the property abutting on the alley is improved.

On the fourteenth day of November, 1891, the council passed, and the mayor approved, an ordinance authorizing the lessor of defendant to construct and maintain a switch, or side track, along this alley from its railroad, south, to the south line of Jules street. The ordinance required the grantee to bring the alley to the established grade and pave it with vitrified brick and keep it in condition for travel. Section 4 of said ordinance is as follows:

"No cars shall be set on this track or switch except for loading or unloading by the adjoining property owners or occupants, nor shall any car be allowed to stand for any length of time upon the portions of said track or tracks embraced by the street or sidewalk lines of Antoine, Isadore, Robidoux, Faraon and Jules streets."

Pursuant to this authority about January, 1893, defendant constructed said track on the established grade of the city and has complied with all the conditions imposed by the ordinance.

This suit is prosecuted by plaintiffs to recover damages for alleged injury to their property by reason of the running engines and cars over said track.

The petition charges, "that said roadbed was constructed and said cars operated upon and over said roadbed, not for the carrying of passengers, nor the use of the public in transferring freight, but by the defendant it was constructed and operated for the sole use and benefit of certain adjoining and abutting property owners and for the sole purpose of furnishing them a convenient place for loading and unloading their freight, and for no other purpose."

Plaintiffs then set out facts for the purpose of showing that they incurred special and peculiar damages by reason of the premises and asked judgment for $ 7,500.

For answer defendant pleaded said ordinance in justification of their acts, and alleged that said track connects with the main line of its road extending through said city and is maintained and operated in connection with said main line as a switch or sidetrack.

The evidence for plaintiffs tended to prove that engines and cars were run over this track almost daily between the line of defendant's road and said wholesale house, causing a jarring of their buildings and the falling of smoke and cinders in and about their premises. It also tended to prove that the passage of cars interfered with the egress of plaintiffs to their premises by way of the alley. It tended to prove further that the transportation on said track was confined exclusively to freight received from or delivered to said wholesale house, and the factories located on or near the alley. There was no evidence of the violation of section 4 of said ordinance or that cars had been permitted to stand upon the track, except when being loaded or unloaded, or that they had been permitted to stand on the track opposite plaintiffs' property for any purpose.

Defendant's evidence tended to prove the facts stated in its answer. It also showed that consignments of freight were received in the cars brought in on this track from any one offering them, and were carried, not only over its main road, but, if the destination required, over any other road to which they could be delivered. So likewise they were carried from distant points and delivered, if desired by the consignee, upon this track.

At the conclusion of the evidence the court was requested by defendant to direct a verdict in its favor which the court declined to do, remarking as a reason therefor: "I believe thoroughly that it is a private switch. I think all the evidence shows it, and I think it is conclusive, and the ruling will be that way, and the instruction will be refused."

For plaintiffs the court gave the jury this instruction:

"The court instructs the jury that the defendant has no right in law to construct or operate the railroad track in the alley in evidence, and that they will find for the plaintiff provided they believe from the evidence in this case that the construction and operation of said railroad track rendered the possession of the plaintiff's property less valuable than it was prior thereto; if the jury find for the plaintiffs, they will assess their damages at such sum as they may believe from the evidence the reasonable rental value of said property was depreciated by said construction, and operation of said railroad track, from the time thereof up to the institution of this suit,...