Christy v. C.B. & Q.R.R. Co.

• Decision Date: 10 May 1948
• Docket Number: No. 20987.,20987.
• Citation: 212 S.W.2d 476
• Parties: MARVIN CHRISTY, ET AL., APPELLANTS, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, RESPONDENT.
• Court: Missouri Court of Appeals

212 S.W.2d 476

MARVIN CHRISTY, ET AL., APPELLANTS, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, RESPONDENT.

No. 20987.

Kansas City Court of Appeals, Missouri.

Opinion delivered May 10, 1948.

Appeal from Circuit Court of Adair County. — Hon. Edward M. Jayne and Hon. Tom B. Brown, his successor.

AFFIRMED.

James Glenn and Philip J. Fowler for appellants.

(1) The Public Service Commission has no jurisdiction or authority to decide whether or not the plaintiffs have been damaged or whether or not such damages are actionable or to assess any damage. State ex rel. Kansas City So. Ry. Co. v. Public Service Commission, 325 Mo. 862, 20 S.W. 2d 112; City of Kirksville v. Hines, 285 Mo. 233, 225 S.W. 950; State ex rel. Jenkins v. Brown, 323 Mo. 382, 19 S.W. 2d 484; State ex rel. Laundry Inc. v. Public Service Commission, 327 Mo. 93, 34 S.W. 2d 37; Lusk v. Atkinson, 268 Mo. 109, 186 S.W. 703; State ex rel. Rutledge v. Public Service Commission, 289 S.W. 785. (2) Use of bridge, which abuts on plaintiffs' property, as an outlet by the occupants of their property for more than seventy (70) years gives the owners of such land a vested right to travel across such bridge from their premises. Arcadia Realty Co. v. City of St. Louis, 30 S.W. 997. (3) The petition states a cause of action for damages against the defendant. Swisher v. Railroad, 235 Mo. 430; Autenrieth v. St. Louis and San Francisco Railroad Company, 36 Mo. App. 254; State ex rel. Rutledge v. Public Service Commission, 289 S.W. 785; State ex rel. State Highway Commission v. Duncan, 19 S.W. 2d 465; State ex rel. Highway Commission v. Young, 23 S.W. 2d 130.

J.A. Lydick, Waldo Edwards and Paul D. Hess, Jr., for respondent.

(1) The Missouri Public Service Commission has the exclusive power to regulate and provide for the alteration, maintenance and abolishment of overhead railroad crossings, and to apportion the expenditures necessary thereto. 1939 Mo. Rev. Stat., sec. 5627; Mo. R.S.A., sec. 5627, p. 88; American Petroleum Exchange v. Public Service Commission, 172 S.W. 2d 952 (Mo.); City of Cape Girardeau v. St. Louis-San Francisco Ry. Co., 305 Mo. 590, 267 S.W. 601 (1924); State ex rel. Alton R. Co. v. Public Service Commission, 334 Mo. 985, 70 S.W. 2d 52, 54 (1934). (2) In all collateral actions or proceedings the orders and decisions of the Missouri Public Service Commission which have become final are conclusive. 1939 Mo. Rev. Stat., sec. 5694; Mo. R.S.A., sec. 5694, p. 229. (3) A property owner, in order to be entitled to recover damages for an obstruction or vacation of a street, must aver facts which show that he suffers therefrom a special or peculiar injury, different in kind, and not merely in degree, from that suffered by other persons of his neighborhood. Cummins Realty & Investment Co. v. Deere & Co., 208 Mo. 66, 106 S.W. 496; Knapp, Stout & Co. v. City of St. Louis, 153 Mo. 560, 55 S.W. 104; Fairchild v. The City of St. Louis, 97 Mo. 85, 11 S.W. 60. (4) In order for a property owner to be able to aver facts showing that he suffers a special or peculiar injury on account of an obstruction or vacation of a street, his property or some part of it must abut on the obstructed or vacated portion of the street, or else such obstruction or vacation must isolate his property from access to connecting streets. Kansas City v. Brown, 286 Mo. 1, 227 S.W. 89; In re Twenty-Third St. Traffic Way v. Crutcher, 279 Mo. 249, 214 S.W. 109; Glasgow v. St. Louis, 107 Mo. 198, 17 S.W. 743. (5) Property cornering on a street improvement does not abut it. A corner is merely an indefinite point without definable area. Boonville Mercantile Co. v. Hogan, 205 Mo. App. 594, 226 S.W. 620; Kingshighway Supply Co. v. Banner Iron Works, 266 Mo. 138, 181 S.W. 30; Ables v. Southern Ry. Co., 164 Ala. 356, 51 So. 327. (6) The compensation allowed by the Missouri Constitution refers to a taking and damaging of property only, and not of any purely personal rights. Wilson v. Kansas City, 162 S.W. 2d 802 (Mo.); Gorman v. C., B. & Q.R. Co., 255 Mo. 483, 164 S.W. 509; Rude v. The City of St. Louis, 934 Mo 408, 6 S.W. 257. (7) Appellants' amended petition does not state a claim upon which relief can be granted to appellants, or to either of them, against respondent. Wilson v. Kansas City, 162 S.W. 2d 802; Siemers v. St. Louis Electric Terminal R. Co., 348 Mo. 682, 155 S.W. 2d 130; Applegate v. Dir.-General of Railroads, 205 Mo. App. 611, 226 S.W. 628.

BLAND, J.

This is an action for damages alleged to have been caused to plaintiffs' property by reason of the change of the grade of a street by defendant. To plaintiffs' amended petition defendant filed a motion to dismiss on the ground, among others, that the petition failed to state facts sufficient to constitute a claim against defendant upon which relief could be granted. The court sustained the motion, resulting in the entry of a final judgment against plaintiffs, and they have appealed. The question presented upon this appeal is whether the second amended petition states sufficient facts to constitute a claim against the defendant upon which relief can be granted.

The facts, as disclosed by the second amended petition, show that defendant owns and operates a railroad extending in an easterly and westerly direction, and crossing Locust Street, a public highway extending north and south in the town of Callao; that the plaintiffs, Marvin and Thelma Christy, are the owners of 4 1/2 acres of ground which is bounded on the north side by the railroad right of way and, on the west side, by Locust Street; that the plaintiffs, Marvin and Walter Christy, own the remaining 14 1/2; acres of which the 4 1/2 acres above mentioned is a part. The land owned by Walter and Marvin Christy also adjoins the railroad right of way on the north side and abuts on Locust Street on the west. The property owned by plaintiffs, Marvin and Thelma Christy is rectangular in shape and extends from the southeast corner of the intersection of Locust Street and defendant's right of way east along the right of way and south along Locust Street. The property owned by the plaintiffs, Marvin and Walter Christy is in shape a reversed "L" and is contiguously situated south of the property of Marvin and Thelma Christy and extends along Locust Street to Highway No. 36 and east of the property owned by Marvin and Thelma Christy. The south boundary line of their property is U.S. Highway No. 36 which runs east and west and crosses Locust Street.

The petition alleges that at the point where the railroad crosses Locust Street there is a deep cut and that defendant and its predecessor had, for the past 70 years, maintained a wooden bridge carrying Locust Street over this cut; that the only way traffic could pass over the railroad at Locust Street was by means of the bridge; that Locust Street has been paved and graveled by the City of Callao and the grade established at its present level, including the level of the bridge constructed and maintained across the railroad tracks. The petition further alleges that in 1939 the defendant took down the bridge and removed the same, thereby changing the grade of said street and causing obstruction of travel thereto, so that plaintiffs were unable to travel into the City of Callao along said Locust Street, and persons desiring and having business with plaintiffs were unable to travel along said Locust Street at the intersection of said railroad tracks; that the bridge was sufficiently safe to carry traffic and persons desiring to cross over the same; that previous to the time the bridge was torn down defendant had torn up planks from the floor of the bridge and interfered with the travel thereto for the sole purpose of diverting traffic from said street to other streets in the City of Callao, and that as a result of the tearing down of said bridge and the changing of the grade of the street plaintiffs' property has been damaged; that said damage is peculiar to the property of plaintiffs and is not a general damage such as the public generally suffers by reason of the acts of the defendant; that before the destruction of the bridge the value of plaintiffs' property was enhanced by its accessibility to the City of Callao and the business and school facilities thereof.

The petition further alleges that no proceedings to vacate said street, or to change the grade thereof, ever have been had, and there had been no proceeding to assess damages to the property.

The petition further alleges that defendant had no right, nor did any authority exist in anyone, to authorize the said obstruction of said street or to change the grade thereof without first assessing damages to the owners of property on said street and affected thereby; that defendant was under a continuing obligation to maintain a safe passageway on said street across its tracks at the grade level thereof; that the reason for taking down the bridge was for the benefit of defendant solely, and that plaintiffs have been deprived of their property without just compensation and without due process of law. The petition further alleges:

"Plaintiffs state that a special and peculiar damage arising to property hereinbefore described as belonging to Marvin Christy and Thelma Christy, his wife, arises by reason of the fact that the said street on which said property is located has been converted from one in which the occupant of said property had full and free access to the system of streets in the City of Callao, and highways of the State of Missouri, and that by reason of the matters complained of hereinbefore, the said street in front of said property and abutting thereon has been...