Glaessner v. Anheuser-Busch Brewing Ass'n

• Decision Date: 19 May 1890
• Parties: Glaessner v. The Anheuser-Busch Brewing Association et al., Appellants
• Court: Missouri Supreme Court

13 S.W. 707

100 Mo. 508

Glaessner v. The Anheuser-Busch Brewing Association et al., Appellants

Supreme Court of Missouri

May 19, 1890

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

James O. Broadhead for appellant.

(1) The mayor and municipal assembly of the city of St. Louis have authority under the charter to regulate the use of the streets of the city. Art. 2, sec. 26, subdivision 2; Building Ass'n v. Telephone Co., 88 Mo. 272; Tate v. Railroad, 64 Mo. 158; Porter v Railroad, 60 Mo. 160; Randle v. Railroad, 65 Mo. 330; Cross v. Railroad, 77 Mo. 318; Refining Co. v. Elevator Co., 82 Mo. 126; Thompson on Highways p. 6; Macomber v. Nichols, 34 Mich. 212. (2) If the city of St. Louis has such power, the construction and operation of such a railroad track or switch as contemplated under the ordinance in question, if done under the terms of the ordinance and in a skilful and prudent manner, is not a nuisance, although it may produce injury or damage to the owners of property adjacent to the streets over which such railway track or switch may be laid and operated. Randle v. Railroad, 65 Mo. 330, and cases cited above; Macomber v. Nichols, 34 Mich. 212; Gibson v. Donk, 7 Mo.App. 37; Vanderpool v. Hupon, 28 Barb. 196; Jackson v. Smidt, 14 La. Ann. 806; Haight v. Keokuk, 4 Iowa, 109; State Constitution, art. 12, sec. 20; Railroad v. City of St. Louis, 66 Mo. 256; Thompson on Highways, ch. 2, pp. 25-27; High on Injunctions, sec. 762; Werth v. Springfield, 78 Mo. 107; Rigney v. Chicago, 107 Ill. 64. (3) The injury complained of is not peculiar to the plaintiff; he has shown no special damage likely to result to him. Cases cited above; High on Injunction, sec. 762; Coal Co. v. St. Louis, 2 Dillon, 90; Werth v. Springfield, 78 Mo. 107; Rigney v. Chicago, 107 Ill. 64.

Andrew M. Sullivan for respondent.

(1) Courts of equity will enjoin ultra vires acts of corporations injurious to private persons. Hare v. Railroad, 2 Johns. & H. 80, 111; Raphael v. Railroad, L. R. 2 Ch. 147; Glasgow v. City of St. Louis, 15 Mo.App. 113-125. (2) The power of the city to grant to corporations the right to construct railways in the city is not to be found in the provision of the charter giving it power to "regulate the use" of streets, as contended; but in the provision that it shall "have sole power and authority to grant to persons or corporations the right to construct railways in the city, subject to the right to amend, alter or repeal any such grant, in whole or in part, and to regulate and control the same, as to their fares, hours and frequency of trips, and the repair of their tracks and the kind of their rails and vehicles," etc. Art. 3, sec. 26, par. 11. (3) But from whatever provision the power to make such grants is to be derived, the ordinance in question is ultra vires and void, because there is therein no reservation to the city of those rights and powers of control, amendment and repeal required by the charter, and no power nor right reserved by which the city may see to it that streets dedicated solely to public uses are not diverted from the trust to steam railroads for private use and gain alone. Refining Co. v. Elevator Co., 82 Mo. 121. (4) The grant by the city of the right or license to build and operate a steam railroad upon the streets, for private and not for public use, and the delivery up of the streets for that purpose, would constitute a violation of the trust to public uses, upon and for which the streets were held by the city; and a court of equity will enjoin the consummation of such a breach of trust at the suit of any person who would be specially injured thereby. Glasgow v. City, 15 Mo.App. 112; Refining Co. v. Elevator Co., 82 Mo. 121; Jacksonville v. Railroad, 67 Ill. 540; Heath v. Railroad, 61 Iowa 11; State v. Burdetta, 73 Ind. 194; Ferrenbach v. Turner, 86 Mo. 416; Building Ass'n v. Telephone Co., 88 Mo. 172; Rutherford v. Taylor, 38 Mo. 315; Price v. Thompson, 48 Mo. 361; Asylum v. Troy, 32 Am. Rep. 286; Cape Girardeau v. Renfro, 58 Mo. 265; 2 Dillon Mun. Corp. 653. (5) Said railroad would cause a special damage to plaintiff if it would damage or diminish the value of his premises or the rental thereof; or if it would damage, or diminish his business carried on there; or if it would render his premises less accessible. Rigney v. Chicago, 102 Ill. 64; Railroad v. Ayers, 106 Ill. 511; Gottschalk v. Railroad, 14 Neb. 550; Mollandin v. Railroad, 4 McCrary, 290; City of Denver v. Bayler, 7 Col. R. 113; Railroad v. Groves, Texas Ct. App. (civil cases), White and Wilson, 301. Also for consequential damages: City of Reading v. Akthunate, 93 Pa. St. 400; Railroad v. Stein, 75 Ill. 41-47. If the building and operation of this railroad would be a diversion of the use and a violation of the trust of dedication, it would also constitute in that case the imposition of an additional burden or servitude, and thereby result in the "taking or damaging" of plaintiff's property without compensation and contrary to the constitution. Const. Mo, art. 2, sec. 20; Lackland v. Railroad, 31 Mo. 187. It is equally unconstitutional, even though a street be considered entirely public property. 73 Ind. and 82 Mo., supra.

OPINION

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 forenoon, nor between the hours of eleven o'clock in the forenoon and one o'clock in the afternoon, 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 on any street crossed by said tracks for a longer period than five minutes at any one time."

The brewing association buildings occupy a 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 on to the river front where they are connected with the tracks of the St. Louis, Iron Mountain and 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 fifty-six feet on the west side of Broadway street and in which he lives and carries on the business of a retail merchant of dry goods and notions. His property is seventy or seventy-five feet north of the proposed crossing of the track. The property on the street, on each side of the proposed...