Joplin & Western Railway Company v. Kansas City, Ft. Scott & Memphis Railroad Company

• Decision Date: 11 November 1896
• Parties: Joplin & Western Railway Company, Appellant, v. Kansas City, Ft. Scott & Memphis Railroad Company
• Court: Missouri Supreme Court

37 S.W. 540

135 Mo. 549

Joplin & Western Railway Company, Appellant, v. Kansas City, Ft. Scott & Memphis Railroad Company

Supreme Court of Missouri, First Division

November 11, 1896

Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.

Affirmed.

W. H Phelps and E. O. Brown for appellant.

(1) The remedy by injunction was clearly available to the plaintiff on principles of equity jurisprudence. Story, Eq. Jur., sec 927; Osborn v. Bank, 9 Wheat. 740; Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611; Railroad v Railroad, 12 Phila. 642, Contra, Railroad v. Moss, 23 Cal. 323; Boston & L. R. Corp. v. Salem & L. R. Co., 2 Gray, 27. (2) The prior right to particular land attaches to the company which first actually surveys and adopts a route and files its survey according to law. Pierce on Railroads, 157; 2 Wood on R'ys, sec. 237. (3) The statute giving a railway company the right to acquire a strip of land one hundred feet wide for right of way, is a legislative declaration of the necessity of that much ground for railway purposes, and it is not competent to show that less than one hundred feet is sufficient, the legislature having furnished a conclusive presumption of the necessity for that much by legislative fiat. Railroad v. Cornell University, 52 Wis. 537; Railroad v. Jett, 25 Mo. 540. (4) The fact that the relator acquired twenty-five feet for right of way by purchase from the Empire Zinc Company beginning the construction of its road, does not restrict or limit its right to acquire any additional right of way needed, up to one hundred feet, either by purchase or condemnation proceedings. The fact that the Empire Zinc Company was willing to donate to the railway company a strip of land twenty-five feet in width, and no more, does not prevent the railway company from acquiring all land necessary up to the statutory limit upon making compensation as required by law. Fisher v. Railroad, 10 Am. & Eng. R. R. Cases, 14; Railroad v. Dunbar, 100 Ill. 110; Railroad v. Railroad, 26 Kan. 669.

Wallace Pratt, C. W. Blair, and I. P. Dana for respondent.

(1) The appeal herein should be dismissed, because the record showed that the case had not been finally disposed of by the trial court when the appeal was taken. R. S. 1889, secs. 2246, 4542, 5500; Railroad v. Railroad, 94 Mo. 535; Black on Judgments, sec. 24; Freeman on Judgments [4 Ed.], secs. 29, 34; Runnels v. Wash. Univ., 96 Mo. 230; Railroad v. Berger, 32 Mo. 578; Keystone Iron Co. v. Martin, 132 U.S. 91. (2) Plaintiff's claim as to the effect of a railroad company's filing a profile map does not correctly express the law of Missouri on this subject, and, even if it did, on the record and facts in this case, plaintiff would not be entitled to the relief sought herein. Snell v. Harrison, 83 MO. 651; Judy v. Bank, 81 Mo. 404; R. S. 1855, chap. 39, secs. 23 and 29; Genl. Stats. Mo. 1865, p. 332; Wagner's Stats., chap. 37, art. 2; Laws 1877, pp. 369, 370; Const. Mo., art. 2, sec. 21; Railroad v. Shepard, 9 Kan. 647; Railroad v. Abbott, 44 Kan. 176; Converse v. Railroad, 18 Mich. 459; State ex rel. v. Kamp, 8 N.E. (Ind.) 714; Railroad v. Railroad, 11 Abbott (N. C.), 386; Endlich on Interpreta. of Stats., secs. 340-343. (3) If plaintiff is entitled to the relief asked for, it must be by reason of the general equities arising from the facts in the case, and on those facts the chancellor was right in refusing plaintiff's request.

Macfarlane J. Robinson, J., absent.

OPINION

Macfarlane, J.

This is a suit in equity to enjoin the defendant from constructing its railroad over a strip of land twenty-five feet wide through the west half of the southwest quarter of section 15, township 27, range 33, in Jasper county.

The proceedings and evidence show that plaintiff and defendant, both railroad corporations, were locating and constructing lines of railroad from Joplin to a mining district located in a southerly direction and about four miles therefrom. The Empire Zinc Company owned the tract of land above described, and had thereon extensive mills for reducing lead and zinc ore. Each party wished to reach this mill with its railroad. For doing so there appears to be only one accessible route, and this was quite narrow. Plaintiff first adopted its route and made and filed in the office of the clerk of the county court a profile map thereof. The center of the line so adopted was located about thirty-seven and one-half feet west of the mill of the zinc company. For a right of way through this land plaintiff bought a strip of land twenty-five feet wide, the east line thereof being about twenty-five feet distant from the mill. After plaintiff had partly constructed its road at this point, defendant located its road over the land between the mill and the land on which plaintiff was constructing its road, and on the seventeenth day of May contracted with the zinc company for the conveyance to it of all said land for its right of way. On the same day defendant took possession and commenced preparation for building its road thereon. Afterward, on the same day, defendant commenced proceedings to condemn "for main track and side track," the whole of the land for which defendant had so contracted.

This proceeding is to restrain defendant from constructing its road on said land.

The case was heard on answer of defendant, and a motion to dissolve the injunction. The court found for defendant, dismissed plaintiff's bill, and dissolved the temporary injunction theretofore granted, and rendered a final judgment in favor of defendant.

Plaintiff in due time filed a motion for a new trial, which was overruled by the court. On the same day defendant filed a motion for the assessment of damages, which was continued by the court to the next term. On the same day also plaintiff filed its affidavit for an appeal, which was allowed.

I. A preliminary motion to dismiss the appeal was made by defendant. This motion was taken with the case and should be first determined.

The ground for the motion is, that there could be no final judgment, from which an appeal could be taken, until the motion for the assessment of damages had been disposed of.

The statute merely provides that, " upon the dissolution of an injunction, in whole or in part, damages shall be assessed by a jury, or if neither party require a jury, by the court." R. S. 1889, sec. 5500.

In the case of Railroad v. Burger, 32 Mo. 578, after a judgment dismissing plaintiff's bill and dissolving the preliminary injunction, defendant filed his motion for the assessment of damages occasioned by the injunction. The damages were assessed at $ 5,000. At the same term the defendant filed a motion to set aside the verdict and judgment, which the court sustained, and defendant appealed. The court in passing upon the case dismissed the appeal, and gave this reason therefor: "The order setting aside the verdict and judgment left the case standing on Burger's motion for the assessment of damages; and for anything appearing in the record, that motion still remains undisposed of. Until a final disposition is made of it, no appeal lies." The statute under which this ruling was made was the same as that now in force.

It does not clearly appear, from the brief statement of the case made by the court, whether an appeal was taken from the order setting aside the verdict for damages, or from the judgment dismissing the bill. It is, however, clearly stated in the opinion, that, until there has been a final disposition of the motion for the assessment of damages, no appeal lies.

We do not think the view then taken by the court a practical construction of the statute, or that its spirit has been followed by the later cases. It is apparent that damages should not be assessed until there has been a final determination that the injunction was improperly granted. An appeal by plaintiff from a judgment dismissing his bill, and dissolving the temporary injunction, may result in a reversal of the judgment and in reinstating the injunction, or even in ordering it made perpetual. In such case there could be no damages, and an assessment previously made, possibly at great cost to litigants, and after occupying much time of the court, would be entirely nugatory. The statute, failing to prescribe the course of procedure, should be given a practical construction. This can only be done effectively by separating the proceeding for injunction from that for damages, and making the proceedings for the recovery of damages independent of the injunction suit. The provision of the statute for the assessment of damages takes the place of a suit on the bond. If an appeal is taken from the judgment in the injunction suit the motion to assess damages should be suspended until the determination of the appeal.

In Cohn v. Lehman, 93 Mo. 574, 6 S.W. 267, it was expressly held that an action for damages on an injunction bond could not be maintained until a final...