Foudry v. St. Louis, I. M. & S. R. Co.

• Decision Date: 17 March 1908
• Citation: 130 Mo. App. 104,109 S.W. 80
• Court: Missouri Court of Appeals
• Parties: FOUDRY v. ST. LOUIS, I. M. & S. R. CO. et al.

109 S.W. 80

130 Mo. App. 104

FOUDRY v. ST. LOUIS, I. M. & S. R. CO. et al.

St. Louis Court of Appeals. Missouri.

March 17, 1908.

1. MUNICIPAL CORPORATIONS — USE OF STREETS — USE BY RAILWAY — RIGHTS OF ABUTTING OWNER.

A railway company acting under license from the proper authority may lay its track along the established grade of a public street and operate trains thereon without liability to abutting property owners, except for want of reasonable care and skill in doing the work, for such a use enhances the use of the street by the public for travel and transportation, the purpose for which it was intended, and abutting owners acquire and improve their property, knowing that a railway may be operated along the streets, and are not entitled to damage by reason thereof.

2. SAME — RIGHTS OF ABUTTING OWNERS — ACCESS.

A railway in a street is unlawful if it prevents the use of the street for traffic and travel or prevents access to private property, since access is in itself a property right.

3. SAME — INJUNCTION.

When either the use of a street for traffic and travel or access to private property therefrom is obstructed by the laying and operation of a proposed railway track, an injunction will lie, though, perhaps, injunctive relief might be denied in some cases of interference with the right of access, in which case the aggrieved party would be remitted to an action for damages.

4. SAME — USE OF STREET — RIGHT OF DEDICATOR.

The fact that a defendant railway company purchased the ground in the rear of plaintiff's lot, and made a street of it, gives it no greater right to appropriate the street or impair its usefulness to plaintiff than if some one else had dedicated it.

5. SAME — INJUNCTION — EVIDENCE.

Evidence held to sustain findings that certain railroad tracks and improvements in a street did not so interfere with the use thereof by the public or of access to plaintiff's property as to entitle plaintiff to an injunction.

6. SAME.

In determining whether a railway company's tracks interfere with travel and traffic on a street so as to warrant an injunction, the population and business volume of the city, proximity and convenience of other streets, and environments should be considered, and, while even a considerable hindrance or inconvenience to travel and traffic will not necessarily make the occupation of a street by a railway company unlawful, the monopoly of the street by the company need not go to the extent of rendering passage by teams and vehicles impossible, and if the tracks so far engross a street that the public will forego the use of it rather than encounter the danger and difficulty of using it, injunction will lie.

7. SAME — CONTROLLING QUESTION.

The controlling question is whether the track will unreasonably obstruct the street.

Appeal from Circuit Court, Lawrence County; F. C. Johnson, Judge.

Injunction by Alice Foudry against the St. Louis, Iron Mountain & Southern Railroad Company and others. From a judgment dismissing the complaint, plaintiff appeals. Affirmed in part.

This plaintiff asks an injunction against the defendants, two railroad companies and a milling company, to prevent them from maintaining a switch in a public street in the city of Aurora. The switch was put in partly to connect the tracks of the two railway companies and partly to serve the milling company, which was made defendant on an allegation that it was co-operating in the obstruction of the street. Plaintiff sues not only for herself, but in behalf of all other persons whose property will be affected like hers by the switch. She owns a lot 25 feet wide and 100 feet deep, which abuts at the rear on Commercial street where the switch track was laid. The front of her lot abuts on Olive street, south of Commercial street. Her residence is near the front, and at the bank end, and 9 feet from the proposed switch, is a barn. Plaintiff's property is lot 10, block 1, in Lindsee's addition to the city. The west boundary of this block is Harrison avenue, and, according to the plat which has been filed with the abstract, the east boundary is Adams street; but this street is not referred to by the witnesses, and the only cross-streets mentioned in the testimony as east of plaintiff's lot and intersecting Olive and Commercial streets are Washington and Thomas avenues. Commercial street never has been used for traffic and travel, but always as an alley. Olive street to the south is one of the main business thoroughfares of the city; and, on account of their shallowness, no buildings front on the rear of the lots between it and Commercial street. When plaintiff bought her property, there was neither street nor alley in the rear, but that portion of what is now Commercial street was private property belonging to the Lindsee estate. At that time Commercial street, neither as shown on the plat of the city nor as opened, extended as far west as plaintiff's property. Its most western part as platted, lay to the east of plaintiff's lot, and even this part had not been opened, but was fenced with barbed wires with gates in them. In 1903 the city of Aurora granted the St. Louis, Iron Mountain & Southern Railway Company the right to lay its main track, and one side track, along Commercial street. As will be gathered from the facts already stated, the condition of said street was then as follows: The part of it which had been opened was used as an alley rather than as a street. The terminus of the part opened was considerably to the east of plaintiff's lot, and the part which never had been opened, but was fenced, ended to the eastward of plaintiff's lot. The ground in the rear of her lot was private property. The street was thrown open behind her lot and westward to the city limits by said railroad company buying the ground from the Lindsee estate and dedicating it as a street; the company being granted, as said, the right to lay its main track and one side track in the street. Afterward, in 1905, the Majestic Milling Company purchased a strip of ground on the southwest corner of Harrison avenue and Commercial street as a site for a large flouring mill. On September 4, 1905, the Iron Mountain Company was granted, by ordinance, the right to lay a spur track south of its main track and on the south side of Commercial street to the site of the proposed mill. At the same time the St. Louis & San Francisco Railway Company commenced to extend a switch track from the west to connect with the Iron Mountain Company's spur track, thereby uniting the main lines of the two railway companies. These companies had been ordered by the Railroad and Warehouse Commission of the State to construct and maintain a connection for their tracks at Aurora; and the track in controversy was intended as a compliance with said order, as well as to serve the milling company. This fact is pleaded in defense.

The facts on which an injunction against the construction of the switch is prayed are that the Iron Mountain Company had already occupied Commercial street, which is only 50 feet wide, with two tracks, and the three tracks would take up 51 feet of ground, or more than the width of the street, and would permanently monopolize the entire street, to the great and irreparable injury of plaintiff's property. The substance of the cause of action is that the street would be appropriated for the use of the railway and milling companies to such an extent as to prevent travel and transportation over it, and deprive plaintiff of access to the rear of her lot; and it is insisted any ordinance of the city which purported to license such a use of the street is invalid. Besides the defense we have noticed, the several answers filed by the defendants justify the laying of the track under an ordinance validly enacted by the city granting the Iron Mountain Company permission to lay it. The answers deny the track damages the property of plaintiff or prevents access to it from the rear, or obstructs public travel on the street, allege the street was not a traveled one, and had not been since its dedication, that it never had been prepared for travel until the construction of the Iron Mountain Company's tracks, at which time said company made the use of the street for travel practicable by grading and macadamizing it. It is alleged there is a strip nine feet or more wide on the south side of the proposed track to the rear of plaintiff's lot, which affords ample room to drive a team and vehicle to her barn; that the Iron Mountain Company has prepared a crossing over the tracks opposite her barn and on a level with the rails; that said crossing is composed of oak planks, and makes a driveway even with the top of the track. This plat will show the situation:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In addition to the plat various photographs are contained in the record from which a clear understanding of the location of the switch, with reference to plaintiff's property, can be obtained. The court found the facts substantially as alleged in the answers of the...