Field v. Kansas City Refining Co.

• Decision Date: 04 November 1925
• Docket Number: No. 7015.,7015.
• Citation: 9 F.2d 213
• Parties: FIELD v. KANSAS CITY REFINING CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.2d 213 (1925)

FIELD v. KANSAS CITY REFINING CO. et al.^*

No. 7015.

Circuit Court of Appeals, Eighth Circuit.

November 4, 1925.

Richard H. Field, in pro. per.

Charles L. Carr, of Kansas City, Mo. (James E. Goodrich, of Kansas City, Mo., on the brief), for appellees.

Before VAN VALKENBURGH, Circuit Judge, and AMIDON and PHILLIPS, District Judges.

VAN VALKENBURGH, Circuit Judge.

Appellant, since May 15, 1915, has been and now is the owner in fee simple of parts of lots 490 and 491 in block No. 37 of McGee's addition to Kansas City., Mo., at the southeast corner of Main and Nineteenth streets in said city. Said tract has a frontage of 57 feet and 8 inches on the east line of Main street and of 62 feet on the south line of Nineteenth street.

The Kansas City Railways Company is now, and since September 9, 1920, has been, in the hands of receivers duly appointed by the District Court for the Western District of Missouri, and said receivers have and maintain upon the surface of said streets and in front of appellant's said tract of land street railway tracks, and a switch to and from each of the four street railway tracks in said streets, and the intersection thereof, which said switch connects these tracks with the other street railway tracks of the Kansas City Railways Company in and beyond said city.

March 28, 1923, appellant filed in the District Court of the United States for the Western District of Missouri, in which said receivership is pending, an application for leave to sue the Railways Company and its receivers in the circuit court of Jackson county, Mo., upon any or all of the following stated causes of action:

"(1) A cause of action under section 1970 of the 1919 Revised Missouri Statutes, to have judicially ascertained and determined the right, title, interest and estate of petitioner and said Railways Company and receivers, respectively, in, to, and upon the said parts of Main street, Nineteenth street, and the intersection of said streets, and also to have the court define and adjudge by its judgment or decree the right, title, interest, and estate, and all claims of petitioner and said Railways Company and receivers in, to, or upon the said parts of said streets, and also to an award of full relief thereon;

"(2) A cause of action for damages sustained by petitioner from said alleged trespasses of said Railway Company and said receivers upon said parts of said streets and the intersection of said streets; and "(3) A cause of action for a suit in ejectment against said Railways Company and said receivers for possession of said parts of said Main street and Nineteenth street and the intersection thereof."

Appellant, in his application aforesaid, alleges that the Railways Company and its receivers have had, and now have, no right, title, interest, or estate in, to, and upon the above-described parts of Nineteenth and Main streets, or of the intersection thereof, and that they are trespassers thereon; that, by maintaining the switch connecting said tracks and the poles and wires necessary to operation, they have deprived petitioner of ingress to and egress from his said property, and have maintained an abiding menace and nuisance thereto.

The creditor's bill filed prayed the appointment of a receiver for all the property of the Railways Company, including all railroads owned, leased, or operated, tracks and terminal facilities, etc., franchises, leases, rights, and properties. The franchise ordinance of date June, 1914, under which the Railways Company was operating its lines, defined the "property," "street railway lines," "street railway system," or equivalent expressions used to describe the holdings of the Railways Company, as denoting all the property in Missouri then being used in conducting said street railways, including all franchises, rights, and privileges of every nature enjoyed or exercised, or capable of being enjoyed or exercised, in connection therewith. It provided for a large number of extensions, among them one on Main street, from Nineteenth to Twenty-Seventh streets, to be completed within three years. The court, by its order, vested its temporary receiver with title as comprehensive as that prayed in the bill.

October 21, 1920, there was filed the intervening petition of the trustee in the first mortgage upon the properties of the Railways Company, in which it was disclosed that that mortgage was in default, at least since January 1, 1920, and covered, among other property, the lines of railway and trackage of which appellant complains. October 27, 1920, the court appointed the permanent receivers, by its order directing that "said receivers shall forthwith, on assuming their duties, take possession of all of said property, and continue, until otherwise directed, the operating of defendant's lines of railway and its property as one connected and allied system." It appears beyond successful contradiction that, at the time the court, through its receivers, assumed possession and control of the properties of the Railways Company, the trackage and franchise rights, which are the subject of this controversy, formed an integral part thereof.

Upon hearing, the application of appellant to sue in the state court was granted to the extent of permitting him to commence his suit in the circuit court of Jackson county, Mo., and to have summons issued and served as against the receivers and the defendant corporation — this to protect against the running of the statutes of limitation; but appellant was enjoined and restrained, until the further order of that court, from proceeding with said cause in the state court beyond the commencement of the suit and the issuance of service of summons. Conceiving that it had full power and jurisdiction to hear and determine the same, the District Court granted to appellant permission to file in the receivership case an intervening petition, asserting the causes of action set out in his said application. From this order, granting the injunction aforesaid, appellant herein prosecuted his appeal to this court, where the action of the lower court was sustained. 296 F. 800. Thereupon appellant filed in the District Court a motion to dissolve said injunction; that motion was overruled, and the present appeal follows. The action of the trial court in overruling and dismissing this motion is accepted as tantamount to a final disposition from which an appeal will lie.

This case, as has been said, was before this court at a previous term upon the injunction order complained of; that order, viewed as interlocutory, was held appealable under paragraph 129, Judicial Code (Comp. St. § 1121), and was affirmed. The opinion of Judge Kenyon so fully and satisfactorily considers the established principles governing the action of the trial court that further discussion would appear unnecessary. The former appeal involved the validity of the injunction order. The present appeal involves a motion to dissolve the same injunction as improvidently made. No new facts were adduced; the submission was substantially upon the same record; therefore the decision upon...