Glaessner v. Anheuser-Busch Brewing Ass'n

• Citation: 100 Mo. 508,13 S.W. 707
• Parties: GLAESSNER v. ANHEUSER-BUSCH BREWING ASS'N et al.
• Decision Date: 19 May 1890
• Court: United States State Supreme Court of Missouri

13 S.W. 707

100 Mo. 508

GLAESSNER v. ANHEUSER-BUSCH BREWING ASS'N et al.

Supreme Court of Missouri.

May 19, 1890.

MUNICIPAL CORPORATIONS — USE OF STREETS — NUISANCE.

1. The power granted to the city of St. Louis "to regulate the use of streets" (Charter, art. 3, § 26, subd. 2) extends to public uses only, and does not authorize an ordinance permitting a private corporation to build a railroad track and run trains across streets of the city for the transaction of its business.

2. The evidence showed that plaintiff owns improved property on one of the streets, where he lives and does business as a retail merchant; that the street on both sides of the crossing is populous, filled with stores, shops, boarding-houses, and residences; that the proposed railroad track will divert travel from it, decrease the value of plaintiff's property, and take away some of the trade which he now enjoys. Held a sufficient showing of special injury to enable plaintiff to maintain a bill to enjoin the crossing as a public nuisance.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

James O. Broadhead, for appellant. Andrew M. Sullivan, for respondent.

BLACK, J.

By the decree entered in this case the defendant the Anheuser-Busch Brewing Association, a corporation created under the laws of this state, was enjoined from constructing and maintaining a single or double railroad switch track on, over, or across Broadway, Seventh, and Ninth streets, in the city of St. Louis; and the city, its mayor, and other officers, were enjoined from delivering possession of the streets to the brewing association for such purposes. The pleadings and the proof disclose the following facts: The corporate authorities of the city passed an ordinance giving to the brewing association the right to lay down and operate, with steam or cable power, subject to all laws and ordinances then or thereafter passed in relation to the obstruction of public streets, a single or double railroad switch from its brewery to the Mississippi river, over and across Broadway, Seventh, and Ninth streets. These streets run north and south, and the track is to be laid between Dorcas and Arsenal streets, which run east and west. Other provisions are made whereby the brewing association engages to protect the city against damages that may arise to persons or property by the construction and operation of the switch, and it is to be constructed under the supervision of the street commissioner. The ordinance also provides: "The said Anheuser-Busch Brewing Association shall place and maintain upon each graded, guttered, and paved street having sidewalks laid thereon, at the point across which the said railroad shall run, a gate, at each side of the said railroad track, of such character and dimensions as shall be approved by the street commissioner; and the said brewing association shall keep a watchman at all the street crossings where gates are required as aforesaid, both day and night, while cars are running over the said tracks, whose duty it shall be to see that the said gates are closed while trains or cars are crossing the said streets; and no cars shall be run or operated across any of the said streets between the hours of eight o'clock and nine o'clock in the fore noon, nor between the hours of eleven o'clock in the forenoon and one o'clock in the after noon, nor between the hours of three o'clock and half past four o'clock in the afternoon of any day between the first day of September and the first day of July of the succeeding year, inclusive. * * * In no case shall cars be allowed to obstruct public travel or any street crossed by said tracks for a longer period than five minutes at any one time." The brewing association buildings occupied large space of ground on the west side of Ninth street. The proposed switch tracks go east from the brewery over that street, then across Seventh and Broadway streets, and thence onto the river front, where they are connected with the tracks of the St. Louis, Iron Mountain & Southern Railroad; the whole distance being about a quarter of a mile. By reason of a park and the Barracks to the east of Broadway street, a large travel going north and south is made to pass over Ninth, Seventh, and Broadway streets, and the latter is the principal thoroughfare. The plaintiff owns improved property having a front of...