Dubach v. Hannibal & St. J. R. Co.

• Citation: 89 Mo. 483,1 S.W. 86
• Court: United States State Supreme Court of Missouri
• Decision Date: 07 June 1886
• Parties: DUBACH v. HANNIBAL & ST. J. R. CO.

1 S.W. 86

89 Mo. 483

DUBACH v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri.

June 7, 1886.

1. MUNICIPAL CORPORATIONS — RAILROAD COMPANIES — LAYING TRACKS IN STREETS — LIMITATION OF AUTHORITY GIVEN BY STATUTE — PUBLIC USE OF STREET.

In Missouri the legislature may lawfully authorize the laying of railroad tracks in a street, but the railroad company must lay the tracks in the manner authorized; and, where the authority given is restricted by conditions to prevent the public being hindered in the use of the street, the work, if such hindering necessarily is to follow, cannot be proceeded with at all, no matter how important it may be.

2. SAME — LIMITATION OF AUTHORITY OF CITY TO ALLOW BUILDING OF RAILROAD IN STREET.

It is not competent for a city to authorize such use of a street, dedicated as a street, as will destroy it as a thoroughfare for the public use.

3. SAME — INJUNCTION — PUBLIC NUISANCE — RAILROAD TRACKS — ABUTTING OWNER — RIGHT TO SUE.

When the laying of a proposed railroad track would be a public nuisance, but an individual would sustain special damage as the owner of an abutting lot upon which he conducted his business, such individual has the right to institute suit for an injunction.

Appeal from Hannibal court of common pleas.

Thomas H. Bacon, for respondent, David Dubach. G. W. Easley, for appellant, Hannibal & St. J. R. Co.

HENRY, J.

By amendment to the charter of the Hannibal & St. Joe Railroad Company, approved March 3, 1855, the company was authorized to build its road over streets, alleys, and wharves, in any town or village, corporate or not, but required the company so to construct the road "as not to hinder or prevent the public from using the same." Collier street, in the city of Hannibal, was dedicated as a street, and the railroad company laid down its track on that street. Prior to the laying of the track in the street there were buildings on either side of the street, but it was graded by the defendant company nearly its width. At first defendant laid but one track; but after the plaintiff purchased his lot fronting on the street, and used by him as a lumber yard, the defendant laid a side track in the street about the year 1866. The main track was south of the center of Collier street, and the greater part of the street was north of the north rail of the track. The switch was laid north of the center of the street. Some time in the year 1882 the defendant made a contract with the Hannibal Transfer Company, giving to that company the use of defendant's tracks between the Mississippi river and the yards for taking out cribs of lumber on cars, and, in order to enable the transfer company to use cars with...