DeGeofroy v. Merchants Bridge Terminal Railway Company
| Citation | 79 S.W. 386,179 Mo. 698 |
| Parties | DeGEOFROY et al., Appellants, v. MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY |
| Decision Date | 24 February 1904 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.
Affirmed.
Sale & Sale and David Goldsmith for appellants.
(1) Abutting owners are entitled to compensation for damages to their property, occasioned by the construction and operation of railroads in public streets, when the railroad is not constructed upon the grade of the street. Sherlock v Railroad, 142 Mo. 183; Tate v. Railroad, 64 Mo 158; Cross v. Railroad, 77 Mo. 322; Smith v Railroad, 89 Mo. 24; Knapp-Stout & Co. v. Railroad, 126 Mo. 135. (2) Defendant is liable to plaintiffs for the injuries to their abutting property by reason of the construction and maintenance of defendant's elevated railway. Storey v. Railroad, 90 N.Y. 122; Lahr v. Railroad, 104 N.Y. 269; Abendroth v. Railroad, 122 N.Y. 1; Kane v. Railroad, 125 N.Y. 186; Doane v. Railroad, 165 Ill. 510; Stewart v. Railroad, 166 Ill. 1; Railroad v. Webster, 81 Md. 529; Railroad v. Hibernian Soc., 84 Md. 420; Bank v. Railroad, 28 F. 231; affirmed 135 U.S. 432; State v. Superior Court, 66 P. 385; Transfer Co. v. Seattle, 68 P. 90. The authorities last referred to have been expressly approved in this State in Sheehy v. Railroad, 94 Mo. 597; Mfg. Co. v. Railroad, 113 Mo. 315. (3) If plaintiffs have no constitutional right to the compensation sued for, they nevertheless have a statutory right thereto. Laws 1887, p. 39; R. S. 1889, secs. 6116, 6117. (4) Plaintiffs are entitled to sue for the damage of their property as compensation due them under the constitutional provisions for the taking of their property. Allen v. Railroad, 84 Mo. 646; Webster v. Railroad, 116 Mo. 114; Railroad v. Matthews, 99 Ala. 24; Railroad v. Fox, 42 Kan. 490; Railroad v. Ingram, 30 S.W. 8; White v. Railroad, 113 N.C. 610; Railroad v. Ziemer, 124 Pa. 560. (5) The action herein is not barred by the statute of limitations. Railroad v. Ziemer, supra; Doyle v. Railroad, 113 Mo. 280; Webster v. Railroad, supra; Galway v. Railroad, 128 N.Y. 145; Organ v. Railroad, 51 Ark. 265; Railroad v. O'Harra, 48 Ohio St. 343.
John H. Overall for respondent.
(1) Under the decisions of the courts of this State the construction and operation of a railroad on the public street of a city, whether such railroad is propelled by horse or steam power, and whether upon the surface of the street or above it on what is known as an elevated road, does not, unless improperly constructed or negligently operated, give a right of action for damages to the abutting owner. (2) Under the fourth subdivision of section 4273, Revised Statutes 1899, plaintiffs are barred by the statute of limitations from sustaining this action. (3) Plaintiffs, having stood by and seen defendant expend many hundreds of thousands of dollars in the erection of the elevated portion of its railway, without objection or complaint, and having for more than nine years permitted defendant to operate its railroad without asserting their rights, if any, are not now entitled to relief in equity by injunction. (4) Plaintiffs' action, if any, is at law, where damages may be assessed by a jury, and is not in equity.
OPINION
In Banc
This is an action by plaintiffs who are abutting owners of real estate on Front street in the city of St. Louis for damages to their said realty, occasioned by and resulting from the construction and operation of an elevated steam commercial railroad along and over said Front street in front of plaintiffs' lots. In the circuit court a demurrer to the petition was sustained on the ground that it did not state facts sufficient to constitute a cause of action. The propriety of that action by the circuit court presents the sole and only question for our determination at this time.
Omitting caption, the plaintiffs allege that the defendant is a railroad corporation, engaged as a common carrier, operating a steam railroad with locomotives and cars at and in the city of St. Louis. That plaintiffs are now and for many years have been the owners in fee simple of a lot in City Block 5 fronting 76 feet on the west line of Wharf or Front street in the city of St. Louis with a depth of 75 feet, on which lot there were at all the times mentioned in the petition and are now erected three substantial four-story brick buildings known as numbers 203, 204 and 205 South Levee or Front street. That plaintiffs acquired the said lot and premises prior to the year 1890, and have owned, and occupied the same by themselves and their tenants, continuously since April, 1890. That said Front street, known as the Levee or Wharf, is and was for many years prior to the construction of defendant's said railway as hereafter set out, a public street and highway of the city of St. Louis, and held by said city in trust for the maintenance thereof as public streets are generally used and maintained; that plaintiffs were and are seized of an easement in said street and are entitled to have the same kept and used as a public highway and to be protected from unusual and extraordinary interferences with the light, air and access to and use of their premises not occasioned by ordinary street uses; that as an incident and appurtenant to plaintiffs' ownership of said premises, plaintiffs, at least until condemnation, compensation, or purchase, have and had in said Front street the right and easement to its free and unimpaired use, for the uses and ordinary purposes of a public street or highway, and to exemption from noise, smoke, soot, dust, cinders, obstructions and unusual impairment of the easements of light, air and access and ingress and egress to and from said premises, etc. That defendant's structure and the operation of its engines and cars on said street in front of plaintiffs' premises are of a permanent and continuous nature. The petition avers that the railroad of the defendant was an elevated road, the superstructure of which rested upon iron columns which were erected perpendicularly to a height of from fifteen to twenty-five feet above the surface of the street or sidewalk; that these columns supported cross-girders or frame work, upon which were laid four single railroad tracks, or two double railroad tracks, and that the railroad of the defendant has ever since the erection of the structure been, and still is, operated upon these tracks; and that the superstructure extends out on either side, so that the western line thereof approaches the eastern or building line of plaintiffs' premises within twelve feet, more or less; that these structures are of a permanent nature, and are built and intended by the defendant to be used permanently for the transportation of freight and passengers; "that large numbers of freight and passenger trains daily pass in front of plaintiffs' premises, and produce a flickering and darkening of the light, and deprive and have hitherto deprived plaintiffs of the beneficial use of such light as comes to said premises, and interferes with the air, ventilation and access to said premises, and the privacy thereof; that said structure, as it now exists, and as above described, has been erected and maintained without legal right, and is a special injury to plaintiffs and their premises; that the operation of said railroad is not an ordinary street use of said street authorized by law; that on the road thus constructed, the defendant every day ran, and still does run, many trains of cars; that said railroad and structure greatly obstructed, and still do greatly obstruct, said premises and the passageway to and from said building; that they excluded, and still do exclude, light and air from the same; that the trains made and still do make, loud and disagreeable noises, caused and still do cause vibrations of the buildings erected on said premises, whereby the security of such buildings is greatly impaired and their strength lessened, and injured, and still do injure said buildings, and said trains and said structures injure and impair plaintiffs' easements of light, air and access; that the value of the use and occupation of said premises has thereby been greatly damaged."
The petition further avers that the aforesaid structure and the railroad of the defendant impose a new and additional burden on the property of the plaintiffs, and one which was not within the power of the city of St. Louis to authorize without compensating plaintiffs for their property thus taken and damaged; that no compensation has ever been made for the aforesaid taking and damage of plaintiffs' property; that the rental value of said property has been greatly damaged, to-wit, to the extent of $ 2,500 per annum, by the construction and operation of defendant's railroad in said street; and that the property itself has been permanently damaged in the sum of $ 25,000. That the city of St. Louis did heretofore, to-wit, on July 9, 1887, adopt an ordinance which undertook to authorize the construction of defendant's railroad, and the use of the streets therefor, which said ordinance is set forth in full in the petition, and which, among other things, required the construction of said railroad to be commenced within one year after the approval of the ordinance and to be completed within five years from February 3, 1887, and which said ordinance was subsequently amended by another ordinance, approved December 21, 1889; that the defendant, with the view of availing itself of the provision of said ordinance and claiming to act under the same,...
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