City of St. Louis v. St. Louis & S. F. R. Co.

• Decision Date: 14 June 1910
• Citation: 129 S.W. 691,228 Mo. 712
• Parties: CITY OF ST. LOUIS v. ST. LOUIS & S. F. R. CO. et al.
• Court: Missouri Supreme Court

129 S.W. 691

228 Mo. 712

CITY OF ST. LOUIS v. ST. LOUIS & S. F. R. CO. et al.

Supreme Court of Missouri. Division No. 1.

June 14, 1910.

1. RAILROADS (§ 94) — GRANT OF RIGHT TO CROSS STREET—CONDITIONS—CONSTRUCTION.

A contract between a city and a railroad company whereby the city granted to the company the right to construct and operate tracks across streets, and whereby the company agreed to pay to the city a specified sum for each bridge built by the city across the tracks, did not bind the city to erect bridges of steel, iron, concrete, or solid masonry for abutments in order to recover the specified sum, but the city could erect a wooden bridge, where it appeared that the average life of a wooden bridge was from 8 to 10 years, that in that time timbers most exposed to the ground would begin to rot, that it was practical and usual to repair such bridges by replacing decaying timbers from time to time, or by gradually changing the character of the bridge from wood to steel or concrete or masonry, and that to build a particular bridge of steel or concrete would cost $500,000, while a wooden bridge would cost $40,000.

2. APPEAL AND ERROR (§ 1010)—FINDINGS— CONCLUSIVENESS.

The finding of the court trying a case without a jury supported by substantial evidence will not be disturbed on appeal.

3. RAILROADS (§ 97)—GRANT OF RIGHT TO CROSS STREET — CONDITIONS — REMEDIES — EVIDENCE.

Evidence held to justify a finding that a bridge built by a city which had granted to a railroad company the right to maintain tracks across streets subject to the condition that it should pay to the city a specified sum for each bridge built by the city over the tracks was so built as not to unduly interfere with the company in the operation of the tracks, justifying a recovery of the specified sum.

4. CONTRACTS (§ 147)—CONSTRUCTION—INTENTION OF PARTIES.

The court, in construing a contract, must ascertain the true intent of the parties, and enforce that intent.

5. CONTRACTS (§ 154)—CONSTRUCTION—MEANING OF WORDS.

The court, in construing a contract, must give to the words therein a reasonable meaning to attain a just result, and the words therein should not be given a strained construction.

6. CONTRACTS (§ 169) — CONSTRUCTION—SURROUNDING CIRCUMSTANCES.

The court, in construing an ambiguous contract, should take into consideration the parties, the circumstances surrounding them, and the subject-matter of the contract.

7. CONTRACTS (§ 170)—CONSTRUCTION BY PARTIES.

The court, in construing a contract containing a latent ambiguity, may consider the construction placed on the contract by the parties themselves.

8. CUSTOMS AND USAGES (§ 15)—AS EXPLAINING TERMS OF CONTRACT.

An established and general usage may be read into a contract for the purpose of ascertaining the meaning of its language, when a doubt in regard thereto arises on the whole instrument.

9. CONTRACTS (§ 154)—CONSTRUCTION—UNAMBIGUOUS CONTRACTS.

The court, in construing a plain and unequivocal contract, may not by implication so construe the provisions as to add or take from them their plain meaning, and in the absence of mutual mistake, accident, or surprise the

parties must be bound by the terms of such contract.

10. RAILROADS (§ 94)—OPERATION OF TRACKS ACROSS STREETS — RIGHTS OF MUNICIPALITIES.

Under Rev. St. 1899, § 1035 (Ann. St. 1906, p. 898), requiring a railroad company constructing its tracks on or across streets of a city to first obtain the consent of the city, a city granting to a railroad company the right to construct and maintain tracks across its streets may impose the condition that the company shall pay for each bridge built by the city across tracks a specified sum, and the company accepting the condition is bound thereby.

11. RAILROADS (§ 94)—GRANT OF RIGHT TO CROSS STREET —CONDITIONS—CONSTRUCTION.

A contract between a city and a railroad company whereby the latter may operate its tracks across the streets, and whereby it binds itself to pay a specified sum for each bridge built by the city over such tracks, creates in favor of the company a privilege in the nature of a monopoly, and in case of any ambiguity the provisions must be construed in favor of the city.

12. RAILROADS (§ 94)—GRANT OF RIGHT TO CROSS STREET—CONDITIONS—CONSTRUCTION.

Such contract does not necessarily imply that the city building a bridge over the tracks will abolish the grade crossing there, and where a bridge was built primarily for through traffic, though it could not be used by manufacturers in constant need of the grade crossing, the city could refuse to abolish either crossing, and recover from the company the specified sum for the erection of the bridge.

13. RAILROADS (§ 94)—GRANT OF RIGHT TO CROSS STREET—CONDITIONS—CONSTRUCTION.

Such contract does not bind the city to build a steel or concrete bridge at one place merely because it has constructed a steel bridge at one place and a concrete bridge at another, and the material of which a bridge shall be built must depend, so long as allowable material is used, on the state of the public funds, on the location of the bridge, its length, and amount and character of travel.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by the City of St. Louis against the St. Louis & San Francisco Railroad Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

W. F. Evans and J. G. Egan, for appellants. L. E. Walther and B. H. Charles, for respondent.

LAMM, P. J.

Defendants appeal from a judgment in favor of plaintiff city for $15,000 with interest at 6 per cent. per annum from April 1, 1904, aggregating $17,507.50, for building a bridge on Kingshighway over their tracks. In June, 1881, the municipal assembly of the city of St. Louis passed an ordinance, No. 11,725, authorizing the defendant railway company to enter the city from the west on the condition, inter alia, that it accept the ordinance. Due acceptance was made, and presently it ran its tracks into the city by virtue of such ordinance and acceptance. In 1896 defendant railroad company became owner of the property, business, rights of way, and franchises of defendant railway company, and, as such successor, is now the owner of its rights, privileges, franchises, and properties, and is operating the railroad in question, claiming (cum onere) the rights vested in its predecessor under ordinance 11,725. There being no contention that both defendants are not liable if one is to avoid confusion, we will refer to both indiscriminately as the "Frisco."

Attending to ordinance 11,725, for our purposes its substance alone is material, viz.:

By section 1 permission and authority was granted to the Frisco to extend, construct, maintain, and operate its railroad from the western line of the city eastward by the most practical route across a great many streets, roads, and avenues, including a north and south thoroughfare known as "Kingshighway," to a street then known as "Tayon Avenue" but now known as "Eighteenth Street." Said section marks out the route by points, courses, distances, and designations immaterial here.

Section 2 grants authority to the Frisco to construct and operate one or more of its tracks on Gratiot street on conditions named.

Section 3 relates to the interruption of public travel in laying tracks across the many designated streets, and that the track laying should be under the supervision of the board of public improvements, etc.

Section 4 designates speed limits, and provides police regulations for the public safety, such as sounding bells on moving locomotives, manning trains with experienced brakemen, the maintenance of gates, watchmen at crossings, etc.

Section 5 provides that the Frisco must file its written acceptance of the provisions of the ordinance and a bond in the sum of $100,000, conditioned on its faithful observance of the provisions of the ordinance before it shall lay its tracks across any street.

Section 6 is a provision requiring a plan and profile of its proposed tracks showing elevations and grades, etc., to be filed before it shall construct any of its road within the city limits, and reserves to the city the right to change the grade in certain contingencies.

This suit is instituted under section 7, reading: "Sec. 7. The St. Louis & San Francisco Railway Company shall pay into the city treasury for each bridge hereafter constructed across its railroad tracks, in the city of St. Louis, west of Tayon avenue, and including said avenue, the sum of fifteen thousand dollars; said payments to be made within thirty days after the construction of the bridges is commenced."

Section 8 relates to interference with water pipe and sewers in the construction of the railroad; and section 9 is a provision requiring trains to be run between certain hours within the city limits, and regulates passengers' fare on such trains.

It seems the tracks of the Frisco at the locus in quo run in the Mill Creek valley; that at that point the tracks of the Missouri Pacific parallel those of the Frisco; that the right of way of the latter is 100 feet wide; that Kingshighway, crossing all said tracks, is also 100 feet wide, running about parallel with the Mississippi river, and is the most western street connecting the north and south parts of the city; that there is no through street east of it for a great ways; that public travel thereon has much increased with the development of St. Louis in that region; that the Louisiana Exposition was about to be held; and that municipal and public attention in 1903 was sharply directed to the matter of public travel over grade crossings as an incident to that exposition. In this condition of things, in December, 1903, the municipal assembly of St. Louis passed an ordinance, No. 21,346, providing for a bridge in Mill Creek valley on Kingshighway over the railroad tracks there, so that travel on Kingshighway would not be obliged to take the grade crossing, but...