Gorman v. Chicago, B. & Q. R. Co.

• Decision Date: 03 March 1914
• Citation: Gorman v. Chicago, B. & Q. R. Co., 164 S.W. 509, 255 Mo. 483 (Mo. 1914)
• Court: Missouri Supreme Court
• Parties: GORMAN v. CHICAGO, B. & Q. R. CO. et al.

164 S.W. 509

255 Mo. 483

GORMAN v.CHICAGO, B. & Q. R. CO. et al.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

1. MUNICIPAL CORPORATIONS (§§ 269, 657)—STREETS—POWER TO OPEN AND VACATE.

A city vested with the power to open and vacate streets is the sole judge when a street shall be opened or closed for public travel, subject, however, to the inhibition in Const. art. 2, § 21, against taking or damaging private property for public use without compensation.

2. EMINENT DOMAIN (§ 85)—EASEMENTS.

The right of access to property abutting on a street is a right pertaining to property which is protected by the inhibition in Const. art. 2, § 21, against taking or damaging private property for public use without compensation.

3. EMINENT DOMAIN (§ 275)—USE OF STREETS — RAILROAD EMBANKMENT — ENJOINING MAINTENANCE.

The maintenance of a railroad embankment across a street so as to obstruct travel from, but not obstructing access to, abutting property, will not be enjoined at the suit of the owner, though the obstruction depreciates the value of his property.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Ellen Gorman against the Chicago, Burlington & Quincy Railroad Company and the City of St. Louis.From a judgment for defendants, plaintiff appeals.Affirmed.

This suit was commenced in the circuit court for the city of St. Louis, December 28, 1909.The amended petition filed January 17, 1910, is, caption and signature omitted, as follows:

"Plaintiff by leave of court files this, her amended petition, and states that the defendant Chicago, Burlington & Quincy Railroad Company is and was at all the times hereinafter mentioned a railroad corporation, and the defendantcity of St. Louis is a municipal corporation and political subdivision of the state of Missouri; that plaintiff is the widow of Francis Gorman, who died at the city of St. Louis on or about the 7th day of June, 1904, leaving a last will and testament whereby, after bequeathing the sum of $5 to each of his children, he devised and bequeathed unto plaintiff all other property, whether real, personal, or mixed, which he owned at the time of his death; that at the time of his death the said Francis Gorman was the owner of the tract of ground hereinafter particularly described, and under his will plaintiff became and still is the owner thereof, and all the debts and bequests mentioned in the will of said Francis Gorman have been paid and his estate duly administered and settled; that subsequent to the dedication of Aurora avenue as hereinafter stated, and prior to the construction of the railroad embankment hereafter described, the said Francis Gorman for a valuable consideration purchased and thereby became the owner of the tract of ground above referred to and particularly described as being a tract of land situated in United States survey No. 926, having a front of 660 feet on the south line of Aurora avenue and extending southwardly between parallel lines for a distance of 341 feet 8 inches, and thence southwardly to the center line between Aurora avenue and Humboldt avenue, on which center line it measures 620 feet, said tract being composed of lots 31 and 32 of that part of the subdivision entitled, Garden Suburb, by John How, which lies east of the Wabash Railroad, excepting the triangle off of the southeast corner thereof conveyed by said Francis Gorman to the St. Louis, Keokuk & Northwestern Railroad Company, on or about the 9th day of January, 1892; that at the time that said Francis Gorman became the owner of said tract of ground the same was in St. Louis county but outside of the city of St. Louis; that thereafter about the year 1876 the limits of the said city were extended so as to include within said city the said tract of ground and all of said Garden Suburb; that said Garden Suburb was a subdivision made by one John How, who duly platted same and recorded a plat thereof in the office of the recorder of deeds of St. Louis county, on or about the 24th day of July, 1868, and which is of record in the office of the recorder of deeds of the city of St. Louis in plat book 6, p. 22; that in said subdivision divers streets were platted and dedicated as public streets and highways, and amongst them was Aurora avenue, which runs in a general eastern and western direction from Broadway, formerly Bellefontaine road, on the west to the Mississippi river on the east and being the only public street upon which plaintiff's said tract of ground fronts, and said Aurora avenue ever since has been and still is a public street and highway; that there is no way of reaching plaintiff's said tract of ground except by passing along Aurora avenue from the east or from the west; that by ordinance No. 15,377 of the defendantcity of St. Louis, approved December 24, 1889, the St. Louis, Keokuk & Northwestern Railroad Company was authorized by said city to construct, maintain, and operate a railroad of standard gauge with a single or double track over, along, and across divers streets and alleys in said ordinance mentioned and along a route therein designated and which included the crossing of Aurora avenue at the point hereinafter stated; that, purporting to act in accordance with the terms of said ordinance, the said railroad company in 1893 constructed its railroad across Aurora avenue at a point about 250 feet east of the eastern line of plaintiff's said property; that in constructing its said road the said railroad company wrongfully built across said Aurora avenue at the point aforesaid a solid embankment about 30 feet wide on top and with sloping sides and the top of which was and still is about 15 feet above the surface of Aurora avenue; that upon said embankment the said railroad company laid its tracks and operated its trains thereover; that on or about January 1, 1901, said St. Louis, Keokuk & Northwestern Railroad Company sold, conveyed, and delivered said railroads and embankment to defendant Chicago, Burlington & Quincy Railroad Company, which has ever since maintained and operated same and still does so; that said embankment entirely obstructs travel along Aurora avenue eastwardly from plaintiff's property, and there is no street or highway crossing or leading into Aurora avenue between the western line of plaintiff's property and the said embankment of said railroad company; that by the construction of said embankment across Aurora avenue aforesaid the easement incident to plaintiff's said tract of ground of the right to pass from same eastwardly to the public wharf and the river has been totally destroyed, and there is no way of reaching plaintiff's said property by travel along Aurora avenue from any point east of said embankment, and thereby plaintiff has been deprived of her property, to wit, said easement, without due process of law, contrary to section 1 of the amendment 14 to the Constitution of the United States, and plaintiff's said property has been taken and damaged for public use and without compensation contrary to section 21 of article 2 of the Constitution of Missouri, and said embankment so built across Aurora avenue, as aforesaid, is and since its construction always has been a public nuisance, and said railroad company has been permitted to maintain said public nuisance by the defendantcity of St. Louis, which has never at any time taken any steps to cause same to be removed, and by the maintenance of said public nuisance plaintiff's property has been greatly depreciated in value, and by reason of said nuisance and the location of said property and of the deprivation by said nuisance of plaintiff's said easement and right to travel to and from her said property eastwardly along Aurora avenue she has suffered and will suffer damages different in kind from that suffered by the public at large by reason of the maintenance of said public nuisance, and plaintiff states that she has no adequate remedy at law in the premises.

"Plaintiff therefore prays the court to order, adjudge, and decree that the said public nuisance be abated, and that the defendant railroad company be perpetually enjoined from maintaining said solid embankment over Aurora avenue and from maintaining its tracks across Aurora avenue at the point aforesaid without providing ample and adequate means for traveling along said avenue in vehicles and on foot eastwardly to and from plaintiff's property, and that the defendantcity of St. Louis be enjoined from further permitting the said obstruction to be maintained in Aurora avenue as aforesaid, and that plaintiff be granted such other and further relief in the premises as shall seem equitable and just."

To this each defendant demurred generally; the defendant railroad company adding the ground that the cause of action, if any, accrued by the erection complained of which was more than ten years prior to the filing of the suit and was therefore barred by the statutes of limitations.The court sustained the demurrer and entered judgment for the...