Action by Amanda Corby against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.
This is a suit to enjoin the defendant from building and operating a side track of its railroad up a 20-foot alley, through a certain block of ground in the city of St. Joseph, and abutting 160 feet on which plaintiff owns four lots, described as "Lots 7, 8, 9, and 10, in Block 52, of the Original Town of St. Joseph," under authority of Ordinance No. 1,490 of said city.
Plaintiff's amended petition is substantially as follows: "That defendant, pursuant to the provisions of said last-mentioned ordinance, and without compensation or any offer of compensation to plaintiff, threatens, and has agreed with said firms in block 52, to lay its track up the center of said alley, from its present terminus at the south line of Sylvanie street to the south line of Edmond street, and as a continuation of the track laid under the ordinance first above mentioned; that by constructing said track, and running its engines and cars thereon, plaintiff's property aforesaid will be greatly injured, and by reason of the diverting of travel, the closing of access to plaintiff's lots in the rear, the noise, smoke, heat, and dangerous proximity of said tracks, engines, and cars, plaintiff's said property will be irreparably damaged and practically destroyed in its present use and for all purposes intended; that all of said tracks, laid and to be laid, are and will be for the convenience and private use of said firms alone, and to provide for and afford to said firms private and special shipping facilities not accorded to the general public or to other localities within said city limits; that defendant, for the purpose of its freight business and traffic, owns and maintains on the south side of Messanie street, and opposite the termination of said alley, a large and commodious freight depot, with offices, a switch yard, tracks, and appurtenances, all ample and sufficient to accommodate the public generally, and its entire freight business within the limits of said city; that said depot and yards are accessible over paved streets in all directions, and within 1,200 feet of the buildings and places of business heretofore named in said block 52; that defendant is about to, and threatens immediately to, so appropriate this plaintiff's property and the whole of said alley between Edmond and Charles streets, and by running its engines and cars into and upon the same to deprive plaintiff wholly of the use of the same, and to totally destroy said alley for the purpose for which it was dedicated. Wherefore plaintiff prays that the defendant, its agents and servants, may be restrained and perpetually enjoined from laying its track as aforesaid, or running its engines and cars into or upon any part of said Charles street, or the alley between Edmond and Charles streets, as aforesaid, and for all other and proper relief."
The defendant answered, admitting that it was a railroad corporation, as charged, and that for the purpose of increasing and improving its railroad facilities, for the benefit and use of the public, it procured from the common council of the city the right to construct and maintain a switch or side track along and in the alley described, from the south line of Sylvanie street to the south line of Edmond street; said right being embodied in Ordinance No. 1,490, which is as follows:
"Section 1. That the right of way be, and is hereby, granted to the Chicago, Rock Island & Pacific Railroad Company to lay a side track in the alley between Fourth street and Fifth street, from the south line of Sylvanie street to the south line of Edmond street, and across Sylvanie and Charles streets, upon the following conditions:
"Sec. 2. Said track shall be laid and maintained upon the established grade of said streets and alleys, and shall be laid and maintained so as to leave free and unobstructed all water ways, sewers or appurtenances which are or may be hereafter constructed
or laid in said streets and alleys; and in the event of any sewer pipe or main being laid by the city in said streets and alleys said railroad company shall care for and maintain, remove, and relay its track or appurtenances at its own expense, and shall place them in condition to render it safe and practicable to lay, construct or repair said sewers, mains or pipes within five (5) days from the written notice from the city engineer so to do, and said company shall construct or reconstruct any inlet, catch basin or other appurtenance to any sewer, pipe or main belonging to the city which may be rendered necessary in the judgment of the city engineer by the construction and maintenance of the track permitted to be laid hereunder; and the owners or occupants of the abutting property shall have the right at all times to connect with any sewer, pipe or main in said streets or alleys, under a permit from the city engineer.
"Sec. 3. In consideration of the privilege herein granted said railroad company shall pave said alleys and the alleyways of each intersecting street with vitrified brick, excepting the space between the rails and two feet outside thereof, which excepted space for the whole length of said track shall be covered with four-inch white or burr oak plank after the track has been thoroughly ballasted with broken stone. The laying of said track, together with the paving, ballasting and planking shall be done and completed within six (6) months from the approval of this ordinance by the mayor, and said track, paving and planking shall be kept in good repair by said company. In further consideration of this grant, said railroad company shall hold the city of St. Joseph harmless from all costs and damages whatsoever, together with all expenses of litigation, including witness and lawyers' fees, arising from any cause of action which may accrue by reason of the laying, maintenance or operation of the tracks or appurtenances permitted to be laid under this ordinance.
"Sec. 4. The work of constructing, laying, relaying and repairing the track permitted to be laid hereunder, and of the paving and planking hereinbefore described, shall be done under the direction and agreeable to the instructions of the city engineer, and said company shall make and perform any repairs which may become necessary to said track, paving or planking in the judgment of said engineer, within five (5) days after written notice by him so to do, which notice shall be deemed as served when left at the office of any officer or agent of said railroad company.
"Sec. 5. Said track shall be used only for the loading and unloading by the abutting property, and cars shall not stand thereon more than twelve hours.
"Sec. 6. The laying of the track above referred to, or its operation or use by said railroad company, shall constitute an acceptance on the part of said railroad company of the provisions of this ordinance, and the right to construct said track shall commence on the passage and approval of this ordinance, but the neglect, refusal or failure of said railroad company to comply with any provision of this ordinance shall of itself work a forfeiture of any right herein granted."
The answer further alleged that it was about to build said side track or switch when restrained by order of the court, and that the said side track or switch was a continuation and part of the defendant's railroad, for the use and convenience of the defendant and all those who might have dealings with it and use its said railroad, and denied each and every allegation of the petition not so specifically admitted.
The plaintiff demurred to the answer, on the ground that it "does not state facts sufficient to constitute a defense." This demurrer was sustained, and, the defendant declining to plead further, final judgment was entered, enjoining defendant "from laying its track or running its engines and cars into or upon any part of the alley between Fourth and Fifth streets, from the south line of Edmond street to Charles street, and running through block fifty-two (52) of the original town (now city) of St. Joseph, Buchanan county, Missouri." Defendant then brought the case to this court by a writ of error.
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