Henry Gaus & Sons Manufacturing Company v. St. Louis, Keokuk And Northwestern Railroad Company
| Decision Date | 31 December 1892 |
| Citation | 20 S.W. 658,113 Mo. 308 |
| Parties | Henry Gaus & Sons Manufacturing Company, Appellant, v. The St. Louis, Keokuk and Northwestern Railroad Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.
Affirmed.
Mills & Flitcraft for appellant.
(1) The Missouri Contitution, 1875, article 2, section 21, requires compensation to be paid in advance to owners for such damages to property as were previously considered consequential, and included therein damages to property caused by construction of steam railroads in streets. Rude v. St. Louis, 93 Mo. 416; Chicago v. Taylor, 125 U.S. 161; Railroad v. Ayres, 106 Ill. 518; Dupuis v Railroad, 115 Ill. 97; Railroad v. Loeb, 118 Ill. 208; Railroad v. Bowman, 122 Ill. 595; Railroad v. Moore, 124 Ill. 329; Railroad v Brake, 125 Ill. 393; Railroad v. Schneider, 127 Ill. 124; Railroad v. Scott, 132 Ill. 429; Johnson v. Parkersburg, 16 W.Va. 402; Hutchinson v. Parkersburg, 25 W.Va. 226; Spence v Railroad, 23 W.Va. 406; Arbenz v. Railroad, 33 W.Va. 1; Reading v. Althouse, 93 Pa. St. 400; Pusey v. Alleghaney, 98 Pa. St. 526; Railroad v. Getts, 113 Pa. St. 214. (2) The owner of an abutting lot has a special interest in the street, distinct in kind, and in addition to that enjoyed by the public in general. Interference with the right of ingress and egress, light, air, access by customers, by teams and vehicles, and the use of the enjoyment of the street, is a damage peculiar to the owner, and protected by the constitution. Rude v. St. Louis, 93 Mo. 414; McQuaid v. Railroad, 22 P. 899 (Ore.) ; Railroad v. Vance, 115 Pa. St. 325; Dillon on Municipal Corporations, secs. 730-734; Lackland v. Railroad, 31 Mo. 186; 34 Mo. 274. (3) Where buildings have been erected, adapted to a particular purpose, and a public improvement is made, which injuriously affects the property and reduces its market value, such a damage is for public use, and requires compensation to be made. Chicago v. Taylor, 125 U.S. 161; Railroad v. Moore, 124 Ill. 329; Railroad v. Bowman, 122 Ill. 595; Dupuis v. Railroad, 115 Ill. 97; Railroad v. Brake, 125 Ill. 393; Railroad v. Schneider, 127 Ill. 144; Railroad v. Getts, 113 Pa. St. 214; Railroad v. Vance, 115 Pa. St. 325; Laflin v. Railroad, 33 F. 415; 34 F. 859. (4) Damage to property caused by dust, smoke, noise and vibration produced by steam railroads in streets are elements of damage to be considered. Adams v. Railroad, 39 N.W. 629; Railroad v. Hall, 78 Tex. 169; Railroad v. Loeb, 118 Ill. 208; Lewis on Eminent Domain, sec. 230; Mills on Eminent Domain [2 Ed.] sec. 193. (5) The proper remedy is an injunction, until the damage to plaintiff's proprietary rights is ascertained and paid. Carpenter v. Gresham, 59 Mo. 247; McPike v. West, 71 Mo. 199; McElroy v. Kansas City, 21 F. 257; Railroad v. Witherow, 82 Ala. 195; Weyl v. Railroad, 69 Cal. 202; Macon v. Harris, 75 Ga. 761; Railroad v. Ray, 84 Ga. 376; Cox v. Railroad, 48 Ind. 194; Railroad v. Rodell, 89 Ind. 129; Railroad v. Smith, S.Ct. Ind. 15 N.E. 256; Harrington v. Railroad, 17 Minn. 215; Wagner v. Railroad, 38 Oh. St. 32; Jordan v. Railroad, 3 Whart. 502; Borough of Verona, 108 Pa. St. 83. (6) It is the province of a jury to determine the extent of the damage. Lackland of Railroad 34 Mo. 276; Constitution, art. 12, sec. 4. (7) The track is not laid according to ordinance. Railroad v. Chicago, 121 Ill. 176; Lamm v. Railroad, 45 Minn. 71; Revised Statutes, 1889, sec. 2543; State v. Railroad, 86 Mo. 291.
John G. Chandler for respondent.
(1) Where a railroad is located and constructed in a street in a city, under authority of the municipality, and on the established grade of the street, such construction of the railroad and the use thereof for transportation of freight and passengers, by steam power, are lawful, and within the purpose for which the street was dedicated; and any incidental delay or inconvenience caused by the passage of the trains to the abutting lot owners, either by obstructing ingress to or egress from their property, or from dust, smoke, noise or vibration, is not a damage, the subject of compensation within the meaning of article 2, section 21 of the constitution of Missouri. Julia Building Association v. Bell Tel. Co., 88 Mo. 258; Railroad v. Railroad, 97 Mo. 457; Van DeVere v. Kansas City, 107 Mo. 83; Smith v. Railroad, 98 Mo 20; Randall v. Railroad, 65 Mo. 325; Railroad v. St. Louis, 66 Mo. 228; Tate v. Railroad, 66 Mo. 150; Lackland v. Railroad, 34 Mo. 259; Lackland v. Railroad, 31 Mo. 181; Porter v. Railroad, 33 Mo. 128; McMahon v. Railroad, 6 South. Rep. (La.) 640; Jackson v. Railroad, 41 F. 656. (2) Even if the abutting lot owner were damaged by such use of the street, within the meaning of the constitution, he would not be entitled to an injunction, but must sue at law. Stetson v. Railroad, 75 Ill. 74; Patterson v. Railroad, 75 Ill. 588; Railroad v. Shertz, 84 Ill. 135; Rigney v. Chicago, 102 Ill. 79; Mills v. Parlin, 106 Ill. 60; Truesdale v. Peoria G. S. Co., 101 Ill. 561; McMahon v. Railroad, 6 South. Rep. (La.) 640; Arbentz v. Railroad, 10 S.E. (W. Va.) 14; Ohio River Co. v. Gibbons, 12 S.E. (W. Va.) 1093; Yates v. Town of West Grafton, 12 S.E. (W. Va.) 1075; Spence v. Railroad, 23 W.Va. 406; Campbell v. Railroad, 23 W.Va. 238; Smith v. Railroad, 23 W.Va. 451; Hale v. Railroad, 23 W.Va. 454; Lorie v. Railroad, 32 F. 270; Osborne v. Railroad, 35 F. 84; Hutton v. Railroad, 7 Hare, 259; Lister v. Lobley, 7 Adolph. & E. 124; Denver v. Railroad, 17 P. 777. (3) The respondent's tracks were laid under authority of the city and in accordance with the ordinance. Vide ordinances, numbers 15,377 and 13,876, set out in the record.
This suit is to enjoin defendant from laying a track and operating a railroad laterally along Main street in the City of St. Louis in front of the property of plaintiff until compensation for damages thereto should be ascertained and paid. Upon a trial in the circuit court, plaintiff's petition was dismissed and they appealed. A preliminary injunction which was granted at the beginning of the suit was dissolved, and the road had been built and was in use when the case was tried.
The petition charged, and the evidence showed that Main street is, and for many years has been an improved, graded, guttered, curbed and paved public highway, running north and south through the city of St. Louis; that plaintiffs own the entire block fronting on Main street between Clinton and Madison streets, and have thereon a two story and basement, factory, having a front of two hundred and forty feet by a depth eastwardly of one hundred and thirty feet, which was erected for the special purpose of, and was adapted by its construction to use as a planing mill, sash, door, blind and box factory and was used as such; that the building fronts on Main street and is so constructed that the only front which is adapted for receiving and shipping lumber from the street, is the Main street front; that the building is constructed with doors and drive ways opening on Main street for the purpose of receiving lumber and shipping out the product of its said factory; that Main street has a width of eighty feet; that the Merchants' Terminal Railroad Company has also a double track railway along said street, the easternmost rail being within fifteen and one half feet of the curb in front of the factory; that plaintiffs and their customers had theretofore had free access to said factory by driving wagons and other vehicles over Main street to its front, and, for the purpose of carrying thither or removing therefrom lumber or mill work, have been able to enter said premises from Main street front by means of doors and entrances provided, and have been able to have wagons, and vehicles stand on the street, in front of the factory, for the purpose of receiving and discharging lumber and mill work; that there is in front of said premises a side walk made of plank and cinders fifteen feet wide from the building line to the curb of the street; that the defendant threat ened and was about to occupy and obstruct said street by laying thereon in front of said factory, and operating by steam locomotives thereon, double tracks, thereby permanently obstructing said street, and not leaving space between the track and the building sufficient to permit of standing wagons and other vehicles, without constant danger of collision with engines and cars passing to and fro over said tracks, all of which would wholly destroy the use of the street as a thoroughfare, and tend to manifest wrong and injury of plaintiff, and damage of his said property. The damage to the property as charged consisted in the prevention of free ingress and egress to and from the streets, noise and smoke, damage from fires, shaking and vibration of building, all caused by the passage of engines and cars over the street in such proximity to the premises.
Defendant answered, setting up authority by virtue of an ordinance of the city, granting it the license and right to construct a double track railroad along Main street. The ordinance required that the tracks should conform to established grades of the street crossed and occupied. The ordinance and its provisions were not denied. The evidence satisfies us that the tracks were built in a careful and skillful manner and in compliance with the requirements of the ordinance.
I. We are satisfied from an examination of the evidence that plaintiff's property has been somewhat depreciated in value by reason of the construction of the railroad along the street, and the movements of engines and trains thereon. The inquiry to be made is whether the damages thus inflicted are such as are contemplated by section 21, article 2, of the...
To continue reading
Request your trial