City of Hannibal v. Hannibal & S Joseph R.R. Co.

• Decision Date: 31 March 1872
• Court: Missouri Supreme Court
• Parties: THE CITY OF HANNIBAL, Plaintiff in Error, v. HANNIBAL & S JOSEPH RAILROAD COMPANY, Defendant in Error.

49 Mo. 480

THE CITY OF HANNIBAL, Plaintiff in Error,

v.HANNIBAL & S JOSEPH RAILROAD COMPANY, Defendant in Error.

Supreme Court of Missouri.

March Term, 1872.

Error to Hannibal Court of Common Pleas.

A. B. Wilson, for plaintiff in error.

James Carr, for defendant in error.

BLISS, Judge, delivered the opinion of the court.

The city of Hannibal established a street across the track of defendant's road, and on appeal to the Common Pleas the proceedings were dismissed. Defendant claims that the city had no right to establish the street:

1. Because no power to establish any new street is given in the charter; the power being to open new streets, which counsel would limit to opening streets contained in the plan of the city and of its additions. The power to open a street appears to be used in the city charter as synonymous with the power to lay out and establish such street. I infer this, because otherwise this important power would be withheld entirely from the city, but more especially because the whole statute shows that it was so understood. Section 15 of the act of March 20, 1861, amending the charter (Sess. Acts 1860-1, p. 247), provides for taking and paying for private property for opening, etc., any public street. If it had already been established, there would be no private property to be taken. The same remark applies to article IX of the act of 1851, incorporating the city. (Sess. Acts 1851, p. 336.) Our road laws use the term in the same general sense, as will be seen by reference to sections 1, 51, and 52 of the act of 1868 (Wagn. Stat. 1217, 1228), although sometimes it is used in its more restricted sense.

2. Defendant secondly excepts to the proceedings because there was no petition by the property-holders. No such petition is required in the proceeding under consideration. The findings under section 2 of chapter 9 of the act of 1851 (Sess. Acts 1851, p. 336) are entirely different from the present, and no private property is taken, except by consent or petition of all the holders of property on the street, and in such case without compensation.

3. But the chief point relied upon is predicated upon the fact that the land appropriated had already been taken for public use by the railroad company, and it is claimed that the city corporation has no right to appropriate for another public use any portion of the land so taken--as by laying out and opening a street across the track of the railroad--without paramount necessity and express legislative authority. It was not claimed that the city cannot be clothed with power to establish streets across the track, but that no such...