City of St. Louis v. St. Louis-San Francisco Ry. Co.

• Citation: 50 S.W.2d 637,330 Mo. 499
• Decision Date: 27 May 1932
• Docket Number: 29584,29585
• Parties: City of St. Louis v. St. Louis-San Francisco Railway Company, Appellant. and City of St. Louis v. Missouri Pacific Railway Company et al., Appellants
• Court: United States State Supreme Court of Missouri

50 S.W.2d 637

330 Mo. 499

City of St. Louis v. St. Louis-San Francisco Railway Company, Appellant. and City of St. Louis v. Missouri Pacific Railway Company et al., Appellants

Nos. 29584, 29585

Supreme Court of Missouri

May 27, 1932

Appeal from Circuit Court of City of St. Louis; Hon. M Hartmann, Judge;

Judgment reversed.

E T. Miller, A. P. Stewart and C. H. Skinker Jr., for appellant St. Louis-San Francisco Railway Company.

(1) Plaintiff's third amended petition upon which the case was tried did not state facts sufficient to constitute a cause of action against defendant railroad because it did not plead authority from the Public Service Commission for the crossing, and the court erred in entering judgment for the plaintiff upon said amended petition. Kirksville v. Hines, 285 Mo. 240. The failure of the petition to state a cause of action may be raised for the first time on appeal. Sec. 774, R. S. 1929; Hudson v. Cahoon, 193 Mo. 557. (2) The private property of defendant cannot be taken or damaged for public use without just compensation, nor can defendant be deprived of its property without due process of law. Sec 21, Art. II, Constitution of Missouri; Sec. 30, Art. II, Constitution of Missouri; Hook v. Railway Co., 133 Mo. 322. (3) The defendant is entitled to know, from the petition or attached exhibits, the proposed use of its property and the nature and extent to which its property will be taken or damaged. Railway Co. v. St. Louis Union Stock Yards, 120 Mo. 561; Railway v. Clark, 121 Mo. 194; N. Y. & N. J. Telephone Co. v. State (N. J.), 14 A. 122; Chicago v. Lord (Ill.), 115 N.E. 402. (4) Where the city's plans as to the proposed improvement are vague and indefinite no judgment awarding damages or assessing benefits can be legally entered. Kansas City v. Frisco Railroad Co., 230 Mo. 369. (5) If these proceedings can be upheld as vesting in the city the general right to cross the right of way and tracks of defendant in any manner that may hereafter be decided upon, then defendant must be awarded damages commensurate with the maximum amount of damages shown by the evidence for any manner of crossing, and an award of mere nominal damages is erroneous. National Docks & N. J. J. C. Ry. Co. v. State, 21 A. 572.

Thomas J. Cole and Harry R. Stocker for appellant Missouri Pacific Railroad Company.

(1) The court erred in overruling the joint motion to make the petition more definite and certain. State ex rel. Siegel v. Grimm, 284 S.W. 490; Chicago v. Lord, 276 Ill. 571, 115 N.E. 402; Natl. Docks, etc., v. State (N. J.), 21 A. 572; Toledo, etc., Co. v. Detroit, etc., Railroad Co. (Mich.), 29 N.W. 504. (2) The court erred in only allowing this defendant one dollar as damages for the condemnation of defendant's land. Cases cited under Point 1. (3) The court erred in not allowing to this defendant as damages the value of the land taken plus the consequential damage resulting to the defendant from the most damaging type of crossing. Cases cited under Point 1. (4) The court erred in sustaining objections to proper, competent and relevant testimony offered on the part of this defendant. Cases cited under Point 1.

Julius T. Muench, G. Wm. Senn and J. B. Steiner for respondent.

(1) In order to effect an actual crossing of a street by railroad, or vice versa, it is necessary to invoke the jurisdiction both of the circuit court in a condemnation suit, and also of the State Public Service Commission. The jurisdiction of each is separate and distinct. St. Louis City Charter, Art. XXI, secs. 1 to 8; R. S. 1929, sec. 5171; State ex rel. Kansas City Term. Ry. Co. v. Pub. Serv. Comm., 308 Mo. 359, 272 S.W. 960; Railway Co. v. Pub. Serv. Comm., 315 Mo. 1108, 287 S.W. 619; Kansas City v. Kansas City Term. Railroad Co., 25 S.W.2d 1064; Kirksville v. Hines, 285 Mo. 233, 225 S.W. 950; Wabash Railway Co. v. South Daviess County Drainage District, 12 F.2d 914; State ex rel. Siegel et al. v. Grimm, 314 Mo. 242, 284 S.W. 490. (2) The measure of compensation is the amount of decrease in the value of the use for railroad purposes caused by the use for the purpose of the street, such use for the purpose of the street being jointly with the use of the company for railroad purposes. In other words, the railroad company is to be compensated for the diminution in its right to use its tracks caused by the existence and use of the street. Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 266, 41 Law Ed. 979; St. Louis City Charter, Art. XXI, secs. 1 to 8.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

The city of St. Louis proposing to extend one of its streets, Hampton Avenue, across the right of way of the St Louis-San Francisco Railway Company and the parallel and adjacent right of way of the Missouri Pacific Railroad Company in the city of St. Louis, sought to condemn an easement for such street across the rights of way and tracks of said companies. The condemnation proceeding was under the charter of the city of St. Louis. The petition seeks to condemn an easement, eighty feet in width, from east to west, particularly described, "in the land and right of way" of said railroads for the extension of Hampton Avenue across the railroad property. The petition does not allege that the place of crossing the railroad rights of way and tracks, as described therein, had been determined and authorized by the Public Service Commission as "the point of crossing" and that the particular land included within the lines of the proposed easement had been designated by the Public Service Commission as the point of crossing nor does the petition specify the manner of crossing and no plans, specifications or exhibits were attached to the petition or filed, at any time, specifying the manner in which it was intended to carry the street across the railroad rights of way and tracks, whether at, above or below grade. The excepting defendants, the two railroad companies, filed a joint motion asking the court to require plaintiff to make its petition more definite and certain in respect to the "nature of the proposed crossing . . . and if said crossing is by way of viaduct then to file" specifications therefor "to the end that these defendants may be fully and definitely informed as to the exact nature of said proposed public crossing and the nature and extent to which these defendants will be damaged thereby." The motion was overruled by the court. The commissioners, in their report, awarded each defendant railroad company $ 1 as compensation for the taking of the easement in its property and each thereupon duly filed exceptions thereto. The circuit court, upon a hearing, overruled the exceptions and thereafter approved the report of the commissioners and entered judgment thereon awarding compensation in the sum of $ 1 to each defendant railroad company. [Article 21, Charter of the City of St. Louis.] By stipulation the separate exceptions filed by defendant railroad companies were heard together in the circuit court and though separate appeals were taken appellants here make substantially the same assignments of error and as the same issues are involved in the two appeals and the same principles govern both they can be determined as one case.

Appellants say the petition "does not state facts sufficient to constitute a cause of action" against the defendant railroad companies.

Appellants did not demur to the petition and after their joint motion asking that plaintiff be required to make its petition more definite and certain was overruled went to trial upon the question of damages and thereby waived error of the court, if any, in overruling the motion. Nevertheless appellants are not precluded here from challenging the sufficiency of the petition to state a cause of action as a "defendant at any time and in any court until the final end of the case has the right to object that plaintiff's petition does not state facts sufficient to constitute a cause of action" and can properly make such objection "for the first time in the appellate court." [McGrew v. Railway Co., 230 Mo. 496, 132 S.W. 1076; Hudson v. Cahoon, 193 Mo. 547, 91 S.W. 72; Sec. 774, R. S. 1929.]

The petition considered in the light of the statutes governing the crossing of a railroad by a street and the requirements of the charter of the city of St. Louis does not, we think, state a cause of action as to these appellants. Certain requirements of Section 5171, Revised Statutes 1929, apply to the extension of a street across railroad tracks. Said section is as follows:

"1. No public road, highway or street shall hereafter be constructed across the track of any railroad corporation at grade, nor shall the track of any railroad corporation be constructed across a public road, highway or street at grade, nor shall the track of any railroad corporation be constructed across the track of any other railroad or street railroad corporation at grade, nor shall the track of a street railroad corporation be constructed across the tracks of a railroad corporation at grade, without having first secured the permission of the commission: Provided, that this subsection shall not apply to the replacement of lawfully existing tracks. The commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe.

"2. The commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation maintenance, apportionment of expenses, use and protection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public road or highway by a railroad or street railroad and of a...