Ettenson v. Wabash Railroad Co.
| Decision Date | 12 March 1913 |
| Parties | CHARLES ETTENSON v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Francis H. Trimble, Judge.
Reversed and remanded (with directions.)
J. L Minnis, Cravens & Moore, and Sebree, Conrad & Wendorff for appellant.
(1) The plaintiff is estopped from obtaining the relief sought in this case by reason of the acts of his grantors in consenting to and really causing the railroad tracks to be laid in the streets in front of the property for railroad purposes, and in donating the ground for the roundhouse, stockyards and depot, and they and plaintiff, by their laches, in consenting to and acquiescing in the occupancy of the streets by the railroad tracks and the operation of the railroad for a great number of years without any objection or attempt to prevent such operation or the expending of large sums of money in purchasing the railroad property and extending the same to Wabash Junction, the laying of additional sidetracks and building the depot and roundhouse. By the acts, consent acquiescence and laches of the plaintiff and his grantors the plaintiff is estopped to have the relief he seeks. De Geofroy v. Bridge Terminal Co., 179 Mo. 705; Rourke v. Railroad, 221 Mo. 60; Hubbard v. Slavens, 218 Mo. 621; Roberts v. Railroad, 158 U.S. 1; Joyce v. Growney, 154 Mo. 263; 1 High on Injunctions (3 Ed.), secs. 7, 618; Property, etc., Co. v Railroad, 115 Mo. 613; Osborne v. Railroad, 37 F. 830; Dodd v. Railroad, 108 Mo. 585; Merchants Company v. Railroad, 79 Iowa 613; Railroad v. Strauss, 37 Md. 241; Burkam v. Railroad, 122 Ind. 344; Porter v. Railroad, 125 Ind. 476; Good v. Fire Brick Co., 224 Pa. 496; Wolford v. Fisher, 84 P. 850; Duffy v. Mayor, 79 A. 603; Railroad v. Johnson, 90 N.E. 507. (2) The right of access to and from the streets to abutting lots is an easement and as much property as the lots themselves, and when taken or interfered with by permanent fixtures or conditions in the street a cause of action for compensation at once accrues, and the Statute of Limitations begins to run. The ten year Statute of Limitations had run in this case; for more than fifteen years had elapsed from the time most of the tracks were placed in the streets in 1892 to the time the suit was instituted in 1907. Howard County v. Railroad, 130 Mo. 652; Janus v. Kansas City, 83 Mo. 567; 2 Lewis on Eminent Domain (2 Ed.), pp. 1416-17, sec. 653B; Roberts v. Railroad, 158 U.S. 1; Loomis v. Railroad, 165 Mo. 469. (3) It is also a rule in equity that an injunction removing valuable structures from a street as being a nuisance will not be granted, unless the conditions imperatively call for it; nor unless the damages caused by such removal will not be out of proportion to the benefits to plaintiff; nor if the public would suffer great inconvenience. Bank v. Kennett, 101 Mo.App. 370; Osborne v. Railroad, 147 U.S. 248; McElroy v. Kansas City, 21 F. 257; Waggoner v. City, 88 Mo. 34; Good v. Fire Brick Co., 224 Pa. St. 496. (4) Even had there been no estoppel or limitation in the case, the sweeping decree of the court was not justified. The streets, by reason of their natural location, were useless as thoroughfares; no one owning improvements abutting on the alleged obstruction, was complaining; and defendant's tracks occupied something less than one-tenth of the eighty foot street and less than one-half of the sixty foot street. Seibel-Suessdorf Co. v. Railroad, 230 Mo. 59; Foundry v. Railroad, 130 Mo.App. 104; Ft. Edward v. Railroad, 111 N.Y. 753; Colorado Springs v. Railroad, 38 Colo. 107. (5) The reservation by plaintiff's grantors of the right to maintain street railways in the streets, was binding on plaintiff. Traction Co. v. Dunham, 88 S.W. 849. (6) Ordinance 300, and the lost ordinance it was passed to supply, authorize the use of the streets for railroad purposes. (7) Ordinance 967 authorizes track No. 2 in The Concourse.
Culver, Phillips & Spencer for respondents.
(1) a. The evidence established and the court found (and it is not denied here) that defendant has entirely monopolized St. Joseph avenue, and The Concourse, for railroad purposes and transformed them into railroad yards; that the location of its main track, switch tracks, frogs, switch stands, water tank, tool house, oil tanks, the projection of the rails of the tracks above the surface of the ground, the unfilled space between the ties, the elevation of the tracks in The Concourse on an embankment above the natural surface of the street, and distant only twenty feet from plaintiff's property line, the elevation and location of switches 5, 6 and 7, the almost constant use of the space west of switch number 3, for loading, unloading and depositing freight, rails and other material used for railroad purposes, the constant use of the tracks for the passage of twenty-two trains arriving and departing daily, and for switching engines and making and breaking up freight and passenger trains, and the continual standing of at least thirty cars day and night on the tracks, has completely destroyed the use of these streets as public thoroughfares, and as completely destroyed the ingress to and egress from the plaintiff's property. Such use of a public street could not be, and was not authorized by either ordinance 300 or 967 of Excelsior Springs, and was unlawful, and constituted a public nuisance, which the plaintiff, as an adjoining property owner especially injured had the right to enjoin. State ex rel. v. Railroad, 206 Mo. 251; Peters v. City, 226 Mo. 73; Swinhart v. Railroad, 207 Mo. 423; Corby v. Railroad, 150 Mo. 457; Knapp Stout & Co. v. Railroad, 126 Mo. 26; Lockwood v. Railroad, 122 Mo. 86; Schopp v. St. Louis, 117 Mo. 131; State ex rel. v. Railroad, 86 Mo. 13; Duboch v. Railroad, 89 Mo. 483; Brown v. Railroad, 137 Mo. 530; State ex rel. v. Murphy, 134 Mo. 562; De Geofroy v. Bridge Co., 179 Mo. 715; Lumber Co. v. Railroad, 129 Mo. 455; Sherlock v. Railroad, 142 Mo. 172; Lackland v. Railroad, 31 Mo. 188. (b). Ordinance 300 authorized the construction of a single railroad in St. Joseph avenue. It says nothing about sidetracks. Public ordinances granting franchises are to be construed strictly against the grantee. Railroad v. Railroad, 24 F. 308; Railroad v. Kentucky, 161 U.S. 685; Thompson on Corporations, sec. 5345; Sutherland on Statutory Construction, sec. 378. But even if the ordinance had expressly granted the right to construct and operate all the switches of which we complain, it would have been absolutely void because the city has no power to pass an ordinance granting the right to obstruct the street and exclude the public from the use thereof. State ex rel. v. Murphy, 134 Mo. 562; State ex rel. v. Railroad, 206 Mo. 262; Peters v. St. Louis, 226 Mo. 69. (c) Neither did ordinance 967 afford any authority to build track No. 2, on an embankment within twenty feet of plaintiff's property because: 1st. The ordinance is absolutely void. The record shows that ordinance 300 was passed with the written consent of the owners of the abutting property; and the ordinance itself so recites. But there was no consent in writing by petition or otherwise, "of the owners of the land representing more than one-half of the frontage of the street" to the passage of ordinance 967. Without such consent the city had no power to pass the ordinance. R.S. 1909, sec. 9497; R.S. 1899, sec. 6119. 2d. The ordinance did not purport to, and could not grant the right to lay the track, as it was laid from two to two and one-half feet above the grade which was the natural surface of The Concourse. DeGeoffroy v. Bridge Co., 179 Mo. 708. 3rd. This court should not modify the decree in this case so as to require it only to place track No. 2 on grade. Swinehart v. Railroad, 207 Mo. 438. (2) The plaintiff has no adequate remedy at law under the facts in this case. Swinehart v. Railroad, 207 Mo. 435; State ex rel. v. Murphy, 134 Mo. 562; State ex rel. v. Railroad, 206 Mo. 262. Nor does the claim of laches preclude the plaintiff from the relief granted him. The acts complained of constitute a public nuisance. Smith v. Sedalia, 152 Mo. 301; 29 Cyc. 1207; Bowen v. Wendt, 37 P. 149; Mayer v. Land, 34 Colo. 613; Meiners v. Brewing Co., 10 L.R.A. 587; Woodruff v. Gravel Co., 18 F. 753.
Injunction to restrain the obstruction of public streets. From a judgment for plaintiff, defendant appeals.
Plaintiff, a resident of the State of Kansas, owns about sixty unimproved lots in Excelsior Springs, Missouri, a city of 4500 inhabitants. Said lots are worth about $ 30,000.
Defendant is a railroad corporation, and owns and operates a steam railroad between St. Louis and Kansas City, Missouri, with a spur about nine miles long connecting its main line with said city of Excelsior Springs.
That part of the city of Excelsior Springs where plaintiff's town lots are situated was laid out in the year 1887, and the streets and alleys therein were dedicated to public use forever, "save and except the right of way for the street railroads," which right of way was reserved by and to the proprietor, its successors and assigns.
More than half of plaintiff's lots abut on "The Concourse," a street eighty feet wide, shaped like a bow. It encircles the west half of the city.
St. Joseph avenue is sixty feet wide, runs north and south, and each end thereof intersects and merges into The Concourse.
There are three blocks containing thirty-one lots lying between The Concourse and St. Joseph avenue, all of which are owned by plaintiff. Nearly all of plaintiff's other lots abut on the east side of St. Joseph avenue.
There are four other streets running east and west...
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