Foudry v. St. Louis, Iron Mountain & Southern Railroad Co.
| Decision Date | 17 March 1908 |
| Citation | 109 S.W. 80,130 Mo.App. 104 |
| Parties | FOUDRY, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILROAD COMPANY et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. F. C. Johnston, Judge.
AFFIRMED.
STATEMENT.--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 twenty-five feet wide and a hundred 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 back end and nine 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 and 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 & 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 fifty feet wide, with two tracks, and three tracks would take up fifty-one 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:
[SEE ILLUSTRATION IN ORIGINAL]
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 defendants and found, too, the property of plaintiff, and all other property on Commercial street, had been enhanced in value by the construction of the railroad tracks in Commercial street; that the two railroad companies were in the enjoyment of their lawful rights in the maintenance and operation of their tracks on the street, and that the milling company had built its mill and elevator on the switch, thereby acquiring a vested and permanent right therein. It was adjudged the bill of plaintiff be dismissed and defendants go hence without day and recover their costs. Plaintiff appealed.
Though some testimony was given by plaintiff regarding the noise and obstruction caused by operating trains on the mill switch, no nuisance arising in consequence of such annoyance is declared on as ground for relief in the petition, which proceeds on the theory that a city highway has been appropriated to the use of the railway and milling companies to the exclusion of the general public from the street and of plaintiff from access to the rear of her lot. It is alleged these two violations of legal right will result from laying three tracks in the street, but nothing is said about the effect of trains on the use of the street by the public or of her lot by plaintiff; and, in truth, what testimony there is in the record touching these points, tends to prove cars will not be permitted to stand on the new switch, because it must be kept open for the transfer of cars from the main line of one railway company to the main line of the other.
Judgment affirmed.
H. H Bloss for appellant.
One track of a steam railway in an alley where no sidewalks would be required, the alley being sixteen feet wide, was held to be a monopoly of the alley. Sherlock v. Railway, 142 Mo. 172. Again this court held that where an ordinance required the operations of a horse railway every fifteen minutes, in Olive alley, which was twenty feet wide, it was a monopoly of the alley. Watson v. Railway, 69 Mo.App. 548. Two tracks in a forty-foot street from curb to curb was likewise held unlawful. Dry Goods Co. v. Railway, 41 Mo.App. 72. Further authorities showing that the facts here detailed proved an unauthorized use of the street and that the city council has no authority to grant such use of a public street in Missouri, are as follows: Lockwood v. Railway, 122 Mo. 86; Lumber Co. v. Railway, 129 Mo. 455; Duback v. Railway, 89 Mo. 483; De Geofroy v. Railway, 179 Mo. 708; Corby v. Railway, 150 Mo. 465.
Martin L. Clardy and Edw. J. White for respondent, St. L., I. M. & S. Ry. Co.
(1) The undisputed evidence showed that Commercial street in Aurora had only been used as an alley, east of the plaintiff's lot, because a main thoroughfare, Olive street, extended in front of the lots, in the block in which plaintiff's lot is located, and the block is only a half block, or one hundred feet deep. Elliott on Roads and Streets, pp. 91, 109; Long v. Battle Creek, 39 Mich. 323; Trustees v Mayor, 33 N. J. L. 13, 97 Am. Dec. 696; Pettibone v. Hamilton, 40 Wis. 402; Valentine v. Boston, 22 Pick. 75. (2) The undisputed evidence showed that plaintiff had no equities to entitle her to injunctive relief, as she had no rear access to her lot at all, before the railway company bought and dedicated the street to the public, subject to its rights, granted by the ordinances, regularly passed by the city council of Aurora, but the plat of ground now used by her as a street, was then under a barbed wire fence and belonged to the Linzee...
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