Corby v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 14 June 1899
• Citation: 52 S.W. 282,150 Mo. 457
• Parties: Corby v. Chicago, Rock Island and Pacific Railway Company, Plaintiff in Error
• Court: Missouri Supreme Court

52 S.W. 282

150 Mo. 457

Corby v. Chicago, Rock Island and Pacific Railway Company, Plaintiff in Error

Supreme Court of Missouri, First Division

June 14, 1899

Error to Buchanan Circuit Court.-- Hon. A. M. Woodson, Judge.

Affirmed.

Brown & Dolman for plaintiff in error.

(1) The answerstates a good defense.Prima facie the proposed construction, maintenance and operation of the track, under the city ordinance, was lawful, for a public use, and not a nuisance; and the burden rested upon the plaintiff to prove that the power exercised by the city was improperly exercised in this particular case.Brown v. Railroad,137 Mo 529;Railroad v. Railroad,97 Mo. 457;Gaus Mfg Co. v. Railroad,113 Mo. 308;Cross v Railroad,77 Mo. 321.(2) The presumption is, that the action of the council was right and proper and that, in granting the license, due regard was had to the rights of the public and of the owners of property abutting upon the alley.Brown v. Railway, 137 Mo. 529.

B. R. Vineyard and James F. Pitt for defendant in error.

(1) The damage which a property owner sustains by a wrongful obstruction in the building of a steam railroad in a street and which prevents access to said property, is different, not only in degree, but in kind, from that sustained by the general public.And such building is a new and additional burden for which the railroad company is liable in damages.Hayes v. Railroad,46 Minn. 349;Linley v. Railroad,26 Conn. 249;Henderson v. Railroad,78 N.Y. 423;Egerer v. Railroad,130 N.Y. 108;Railroad v. Scott,132 Ill. 438;Hitchcock v. Railroad,88 Ia. 242;Railroad v. Heisel,47 Mich. 393;Starr v. Railroad,24 N. J. L. 592;Evans v. Railroad,88 Wis. 597.And such obstruction of the street, when threatened, may be stopped by injunction in behalf of the property owner.Schulenberg v. Railroad,129 Mo. 455;Sherlock v. Railroad,142 Mo. 172.(2) The right of plaintiff to the use of the street (alley) adjoining her property, and upon which it abuts, is as much property as her lot is.Spencer v. Railroad,120 Mo. 154;Lackland v. Railroad,31 Mo. 183;Householder v. Kansas City,83 Mo. 488;Sheehy v. Railroad,94 Mo. 574;Chicago v. Taylor,125 U.S. 165;Tate v. Railroad,64 Mo. 149;Sherlock v. Railroad,142 Mo. 172.(3) A city can not authorize the construction of a railroad track, even though it be laid on the surface of a street or other highway at the established grade, if in so doing such construction would amount to a monopoly or practical appropriation of the street to the railroad company, and to the practical exclusion therefrom of the public generally, and the abutting property owner, even though such railroad track be for public use.Lockwood v. Railroad,122 Mo. 86;Knapp, Stout & Co. v. Railroad,126 Mo. 29;Schulenberg v. Railroad,129 Mo. 455;Sherlock v. Railroad,142 Mo. 172.(4) Equitable jurisdiction may be invoked in a case like this.When the injury is destructive, or of a continuous character, or irreparable in its nature, under such a state of facts as is disclosed in this case, the individual specially injured may properly invoke the power of a court of equity to grant relief by way of injunction.Osborne v. Railroad,147 U.S. 253;Baltimore v. Baptist Church,108 U.S. 317;Schopp v. St. Louis,117 Mo. 131;Glassner v. Brewing Assn.,100 Mo. 508;Knapp, Stout & Co. v. Railroad,126 Mo. 26;Schulenberg v. Railroad,129 Mo. 455;Osborn v. Railroad,37 F. 830;Sherlock v. Railroad,142 Mo. 172.(5) Under section five of the ordinance, set up by defendant in its answer, as a justification for its preparation to construct the sidetrack, the defendant would have the right to keep a car or cars standing in the alley adjoining plaintiff's property for twelve hours, for the accommodation of the lot owner across the alley, and might repeat the exercise of that right from day to day for an indefinite time.An ordinance authorizing the standing of coaches or cars in a street is violative of the legal rights of the abutting lot owner.The public thoroughfare can not be devoted to any such use.Bronahan v. HotelCo., 39 Oh. St. 333;McCaffrey v. Smith,41 Hun. 117;Colun v. Mayor,113 N.Y. 532;Lackland v. Railroad,31 Mo. 180;Turner v. Holtzman,54 Md. 148;Lippincott v. Lasher, 44 N.J.Eq. 120.

OPINION

MARSHALL, J.

This is a suit to enjoin the defendant from building and operating a sidetrack of its railroad up a twenty-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. 1490 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 fifty-two, 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 twelve hundred feet of the buildings and places of business heretofore named in said block fifty-two.

"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 street 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 sidetrack 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 the ordinance No. 1490, which is as follows:

"Section 1.That the right of way be and is hereby granted to the Chicago, Rock Island and Pacific Railroad Company to lay a sidetrack 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:

"Section 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 re-lay 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 days from the written notice from the city engineer so to do, and said company shall construct or re-construct 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.

"Section 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 months from the approval of this ordinance by the mayor, and said track paving...