City of St. Joseph v. St. Joseph Terminal R. Co.

• Decision Date: 02 June 1916
• Docket Number: No. 17829.,17829.
• Citation: 186 S.W. 1080,268 Mo. 47
• Parties: CITY OF ST. JOSEPH v. ST. JOSEPH TERMINAL R. CO.
• Court: Missouri Supreme Court

186 S.W. 1080

268 Mo. 47

CITY OF ST. JOSEPH v. ST. JOSEPH TERMINAL R. CO.

No. 17829.

Supreme Court of Missouri. In Banc.

June 2, 1916.

Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.

Action by the City of St. Joseph against the St. Joseph Terminal Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Robert A. Brown and Richard L. Douglas, both of St. Joseph, for appellant, citing, inter alia, Knight v. K. C., St. J. & C. B. Rld. Co., 70 Mo. 231; Hovelman v. Kansas City Horse Rld. Co., 79 Mo. 632; Senter v. Lumber Company, 255 Mo. 590, 164 S. W. 501; Wilson v. Drainage District, 257 Mo. 266, 165 S. W. 734; Hannibal & St. J. Rld. Co. v. Marion County, 36 Mo. 294; Edwards v. City of Kirkwood, 147 Mo. App. 599, 127 S. W. 378; Union Depot Co. v. St. Louis, 76 Mo. 393; Simpson v. Stoddard County, 173 Mo. 421, 73 S. W. 700; State v. Dent, 18 Mo. 313; O'Leary v. Metropolitan St. Ry. Co., 87 Kan. 22, 123 Pac. 746; Leavenworth v. Douglass, 59 Kan. 416, 53 Pac. 123; City Ry. Co. v. Citizens' St. Rld. Co., 166 U. S. 558, 17 Sup. Ct. 653, 41 L. Ed. 1114; Sanitary Dist. v. Railway Co., 241 Ill. 622, 89 N. E. 800; Chicago v. Railway Co., 244 Ill. 220, 91 N. E. 422, 135 Am. St. Rep. 316; Paine Lumber Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108; Colorado Springs v. Colorado City, 42 Colo. 75, 94 Pac. 316; Sioux City v. Railroad, 129 Iowa, 694, 106 N. W. 183, 113 Am. St. Rep. 501; In re Melon St., 192 Pa. 331, 43 Atl. 1013; Baldwin v. Trimble, 85 Md. 396, 37 Atl. 176, 36 L. R. A. 489; Simplot v. C., M. & St. P. Ry. Co. (C. C.) 16 Fed. 350; Davies v. Huebner, 45 Iowa, 574; Pella v. Scholte, 24 Iowa, 283, 95 Am. Dec. 729; Lee v. Town of Mound Station, 118 Ill. 304, 8 N. E. 759; Chicago, R. I. & P. R. Co. v. Joliet, 79 Ill. 26; Gregory v. Knight, 50 Mich. 61, 14 N. W. 700; Bradley v. Appanoose County, 106 Iowa, 105, 76 N. W. 519; Quinn v. Baage, 138 Iowa, 426, 114 N. W. 205; State of Iowa v. Carr, 191 Fed. 257, 112 C. C. A. 477; Meltzer v. City of Chicago, 152 Ill. App. 334; Town of Newcastle v. Hunt, 47 Ind. App. 249, 93 N. E. 173.

Charles L. Faust, City Counselor, and Merrill E. Otis, First Asst. City Counselor, both of St. Joseph, for respondent.

GRAVES, J.

The petition herein is in two counts: (1) An action to enjoin the defendant for obstructing a certain described portion of Seventh street in the city of St. Joseph; and (2) an action in ejectment to recover the possession of that portion of said street. In the trial nisi the plaintiff had judgment upon both counts of the petition, and from such judgment the defendant has appealed.

The first count charged the unlawful use and obstruction of said street by the defendant, in that:

"The defendant has constructed and now maintains thereon its railroad tracks, turntables, roundhouses, and water tanks, and has erected and now maintains across said Seventh street, as herein described, a fence by which all of said portion of said Seventh street has been wholly appropriated to its own use and benefit, and is now used by said defendant as its railroad yards."

By its prayer said count thus concluded:

"Wherefore plaintiff prays that the defendant, its agents, servants, and employés, be perpetually restrained and enjoined from entering upon or exercising any right or authority over said portion of said Seventh street hereinbefore described, or doing any other act in said street tending to obstruct, in any way, the free and common use thereof, as a highway in the city of St. Joseph, and that it be enjoined and restrained from maintaining any obstruction on said street which will in any manner interfere with the use of said street, as it was laid out and established for the use of the public generally, and for its costs in this behalf expended."

The second count, as stated, is one in ejectment. The answer sets up an equitable estoppel in this language:

"Comes now the defendant in the above-entitled cause, and for its amended answer to plaintiff's petition filed therein admits that it is a corporation, and admits that it does occupy the particular strip of land in plaintiff's petition described, in the manner and for the uses and purposes therein stated. Further answering, the defendant states that said strip of land is not now, nor has it ever been, used as a public street or highway by the city of St. Joseph or the inhabitants thereof; that it is inaccessible and wholly unfit for street or highway purposes, and would not serve any purpose as a street if opened; that it has been occupied by the defendant in the manner and for the purposes stated in plaintiff's petition for more than 25 years; that the defendant has erected upon said strip of land valuable and expensive improvements, which are now and have been used in connection with its railroad shops and other facilities adjacent thereto for more than 25 years; that the defendant has, during the entire period it has occupied said strip of land, claimed to own the same as its absolute property, openly and adversely to plaintiff and all others; that its occupancy of said strip of land for the purposes stated has been with the knowledge, consent, and approval of plaintiff. Defendant states that plaintiff stood by and invited it to expend, and saw it expended, large sums of money in erecting roundhouses, machine shops, terminal facilities, and in making other improvements on said strip of ground and the grounds adjacent thereto, and that all of said facilities will be useless, and defendant will be damaged in a sum in excess of $500,000, if it is denied the use of said strip of ground; that plaintiff knew when said improvements were made that they would be useless unless said strip of ground could be occupied by defendant; that both plaintiff and defendant treated said portion of Seventh street the same as though it had been vacated when other streets in that immediate vicinity were vacated for the use of the defendant, and it is apparent that it was a mere oversight that said street was not formally vacated. Defendant states that, if said strip of land was ever dedicated for public use as a street, it has been abandoned by plaintiff as such street or highway, and plaintiff is now estopped to claim title to said strip of land as a public street or highway, or for other purposes, and is estopped from complaining of, or in any wise interfering with, defendant's occupancy of said strip of ground."

The evidence introduced shows that South St. Joseph addition to the city of St. Joseph was platted in 1858; that among the several streets in said addition, were Sixth, Seventh, and Eighth streets, running north and south, said Sixth being to the west of Seventh street. Running east and west, among other streets, were Duncan, Doniphan, Jackson, Scott, Pacific, and Sycamore. In naming these streets we have begun with the one on the north and followed them in order to the south. Next north of Duncan street is Monterey street, and next south of Sycamore is Hickory street. In January, 1887, the city of St. Joseph by ordinance duly vacated certain parts of Duncan, Doniphan, Jackson, and Scott streets, and this ordinance reads in conclusion as follows:

"Sec. 5. The city reserves the right to repeal this ordinance, and, without cost to the city, take possession of and reopen said streets, in case the St. Joseph Terminal Railroad Company shall fail to commence the construction of a roundhouse and machine shops upon said streets and the grounds adjoining the same within six months and complete the same in a condition for operation within two years after the date of the approval of this ordinance, or shall fail to maintain or operate a roundhouse and machine shops on said grounds."

These vacations left a clear field for defendant's terminals, from Monterey street on the north to Pacific street on the south. It is clear from the concluding section of this ordinance that the vacations were made for the purpose of having these terminals located in the city. It would appear that Seventh street was only platted as far north as Pacific street. The defendant constructed its terminals between Monterey street on the north to Hickory street on the south, and between Sixth and Eighth streets, although not running as far east as Eighth street. In doing so the roundhouse was made to front on Pacific street just east of Sixth street, and in front of the northern terminal of Seventh street. A portion of the turntable in this roundhouse projected into Pacific street. Tracks cross Seventh street and Pacific street in getting into this roundhouse. In Seventh street, in addition to the tracks, there was constructed an ash pit and water tank, as a part of these terminals.

The cost of the plant was something like $600,000, and it has been bonded for $500,000, which bonds are secured by mortgage on this property, including these streets, both Pacific and Seventh, as well as the regularly vacated streets. This construction and this expenditure were shortly after the passage of the ordinance aforesaid and in compliance therewith. Later a private individual bought property on the west side of what is called Seventh street, and began the agitation of opening that street, and this suit was the outgrowth. The evidence shows that the opening of the streets is not a public necessity. From the date of the plat to the date of the suit, the city has made no effort to improve these streets, in order to open them for public use. The destruction of these tracks across Seventh and Pacific streets would destroy all egress and ingress to the roundhouse. In fact, the evidence shows that the opening of either of these two streets would actually destroy and render useless all of defendant's property of the value of $500,000 or more. At the time of the dedication, and also at the date of the vacation ordinance, Pacific street was a deep gully or creek, through which flowed a stream of water into the Missouri river...