Hovelman v. Kansas City Horse R.R. Co.

• Decision Date: 31 October 1883
• Citation: 79 Mo. 632
• Parties: HOVELMAN v. THE KANSAS CITY HORSE RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

79 Mo. 632

HOVELMAN

v.THE KANSAS CITY HORSE RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

REVERSED.

John C. Tarsney for appellant.

John K. Cravens for respondent.

NORTON, J.

This case is before us on appeal from the judgment of the circuit court of Jackson county, perpetually enjoining defendants from constructing and operating a horse railroad on Eighteenth street in Kansas City.

It appears from the record that the Union Depot Horse Railroad Company became a corporation in 1872, and was organized, as stated in the articles of association, “for the purpose of constructing, operating and maintaining a horse railroad from the junction of Main and Delaware streets, in Kansas City, to the Union Depot in said city, and thence to the Union Stock Yards, in West Kansas City; that on the 9th day of September, 1873, the city council of said city passed an ordinance granting the right of way to said horse railroad company over certain streets in said city, including among the number, Eighteenth street from the eastern limits of the city to Main street, and authorizing it to construct and operate a horse railroad on said street; that prior to 1874 the said company had constructed its road over all the streets named in said ordinance except Eighteenth street, and except that part of Main street between Eighteenth and Eleventh streets; that in 1873 the said company made a deed of trust to secure the payment of 120 bonds issued by said company for $500 each, in which they conveyed to the trustee therein named, all of said company's real estate, rolling stock, houses, depots, rights of way, franchises, etc.; that default was made in the payment of said bonds, and the sheriff of Jackson county, as trustee, and in pursuance of a power given by said deed, sold in 1875 the property mortgaged, and by deed conveyed the same to one Dye, who was the purchaser at said sale, including in said conveyance all the right of way mentioned in said ordinance, except that over Eighteenth street, and that over Main from Eighteenth street to the junction of Main and Delaware; that said Dye, in 1875, conveyed to the Kansas City Horse Railroad Company, a corporation duly organized for the purpose of operating a horse railroad in Kansas City and its vicinity, and the defendant in this suit, all that was conveyed to him by said sheriff; that the said Kansas City Horse Railroad Company, claiming in virtue of the aforesaid sale to be possessed and the owner of the right of way over Eighteenth street, commenced in 1881 constructing its road on said Eighteenth street, when plaintiffs, who are the owners of lots abutting on said street, filed their petition in this cause setting up substantially the above facts, and further alleging that the Union Depot Horse Railroad Company had no power under its articles of association to take a right of way over said Eighteenth street nor construct and operate its road thereon, first, because said Eighteenth street was south and east of the junction of Main and Delaware, and was outside the terminal points mentioned in the articles of association; second, because the said company not having completed its road over said street in one year after the acceptance by the company of the rights of way granted in the ordinance, the right to do so thereafter became forfeited under the 6th section of said ordinance, which provides that “said company shall have their road completed over all the streets and parts of streets where they are granted a franchise by this ordinance, within twelve months from the acceptance by the company of this ordinance, * * and in case of failure to have the same completed as aforesaid * * the common council may take away their franchise by a two-thirds vote; provided that the company may contest such declaration of forfeiture in the courts of competent jurisdiction; third, because neither the said Union Depot Horse Railroad Company nor defendant claiming under it had obtained the consent of the property owners on said street owning a majority in front feet of the property fronting between the points on Eighteenth street where such road is proposed to be constructed. The petition concludes with a prayer for an injunction.

The defendant, in its answer, after denying certain averments in the petition, alleges that the sheriff of Jackson county, in selling the property under the deed of trust before mentioned, did in fact sell the right of way over Eighteenth street to one Dye, and that in making his deed, by mistake he omitted to convey it, and that to correct this mistake, the said sheriff, as trustee, in 1881 made a deed to said Dye conveying to him said right of way as well as all the other property mentioned in said deed of trust; that said Dye, in November, 1881, made a deed of correction conveying to defendant all of the property purchased by him at said sale, and describing it as it was described in the said deed of said sheriff to him. It also sets up that in July, 1875, the Union Depot Horse Railroad Company executed and delivered to defendant a lease for fifty years of all the property and effects of said company, including right of way over Eighteenth street. It also alleges that the Union Depot Horse Railroad Company constructed and put in operation a continuous line of railway from Forest Avenue and Twelfth street, 900 feet south, and three-fourths of a mile east of the junction of Main and Delaware, and thence from said junction to the Union Depot, and thence to the Union Stock Yards; that said company had put in operation under said ordinance upwards of three miles of street railroad, and in constructing and operating the same had expended over $100,000; that about one mile of said road is outside the terminal points specified in the articles of association of said company, and that a large part of said sum was expended in constructing and maintaining that part of said road outside said terminal points.

Upon the trial the court rendered a decree perpetually enjoining defendant from constructing its road on Eighteenth street, from which the defendant has appealed to this court.

One of the controlling questions presented by the record in this case is: Conceding that the Union Depot Horse Railroad Company (under whom defendant claims) in accepting and receiving from the city council of Kansas City the grant of a right of way over Eighteenth street for the purpose of constructing and operating its road thereon, passed the limits of its power, as set forth in the articles of association whereby it became incorporate, can plaintiffs be heard to set that up and ground their right of action on that fact? As preliminary to the solution of this question it may be observed that under the articles of asscciation which gave life to the Union Depot Horse Railroad Company as a corporation, it had the unquestioned right to receive from Kansas City a grant of the right of way for the purpose of constructing, operating and maintaining a road over the streets of said city from the junction of Main and Delaware streets to the Union Depot and thence to the Union Stock Yards. It may also be observed that the common council of the city, in the exercise of a power conferred by the charter of the city, did on the 9th day of September, 1873, pass an ordinance, one section of which is as follows:

1. That the Union Depot Horse Railroad Company, a corporation duly organized under the laws of the State of Missouri, be and they are hereby authorized to construct, maintain and operate, in accordance with the general ordinances of the City of Kansas, governing horse railroads, except wherein otherwise especially provided, their horse railroad within the city of Kansas, upon and along the following streets and avenues to-wit: On Eighteenth street, from the eastern limits of the city, westward to Main street; on Main street, from Eighteenth street to the junction of Main and Delaware streets; on Twelfth street, from Forest Avenue to Grand Avenue; on Grand Avenue from Twelfth street to Eleventh; on Eleventh street from Grand Avenue to Main street, with right to cross the track of the Kansas City & Westport Horse Railroad Company on Walnut street; on Delaware street from Main street to Sixth street; on Sixth street from Delaware street to Broadway street; on Broadway street from Sixth street to Fifth street; on Fifth street from Broadway street to Bluff street; on Bluff street to the bridge over the railroad tracks, across said bridge on the track already thereon, unless the same shall be removed, in which case the said company shall still have the right of way over said bridge and to Union Avenue; on Union Avenue, from the bridge aforesaid, to Mulberry street; on Mulberry street, from Union Avenue to Eleventh street; on Eleventh street, from Mulberry street to Liberty street; on Liberty street, from...