Kansas City Interurban Railway Company v. Davis
| Decision Date | 20 June 1906 |
| Citation | 95 S.W. 881,197 Mo. 669 |
| Parties | KANSAS CITY INTERURBAN RAILWAY COMPANY v. DAVIS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Andrew F. Evans, Judge.
Reversed and remanded (with directions).
James F. Mister and Wash Adams for appellants.
(1) The corporate existence of the plaintiff is an issue which may be made in a proceeding to condemn property. Railroad v Shambaugh, 106 Mo. 566. (2) 1. The charter of plaintiff is forfeited under the very terms of the statute (in failing to do what the law requires of it within the time prescribed by law) that is to say, by the Statute of Limitations. It is the manifest purpose of this statute (R. S. 1899, sec. 1161) to require that the construction of a railroad should be begun in a reasonable time, and continued steadily and in good faith to completion, and that a large percentage of its capital stock should be actually expended, and that the railroad should be finished and put in operation for public use. The law intends in such a case as this "that its corporate existence and powers shall cease," and not that it shall go on indefinitely with neither purpose nor responsibility, neither regarding its own obligations nor its duties to the public. 2. Failure to comply with this statute operated ipso facto to dissolve plaintiff corporation. Ford v. Railroad, 52 Mo.App. 439; In re Railroad, 75 N.Y. 335; Farnham v. Benedict, 107 N.Y. 159; Railroad v. Brooklyn, 78 N.Y. 524; In re Railroad, 105 N.Y. 97; Commonwealth v. Water Co., 110 Pa. St. 391. (3) 1. There has never been made or had, even to this day, an established route or right of way such as the law contemplates and requires. The right of way has been attempted to be subjected by piecemeal, with such variations and breaks in its line that the route is not continuous to the extent of five miles from Kansas City in any direction, and not fairly in the direction of Lee's Summit, its pretended terminus. 2. And even over this nominal space, accomplished only by evasion and jugglery, there are spaces of 700 or 800 feet, by its own admissions, on its pretended right of way, which have not been acquired by plaintiff to this day, either by voluntary transfer of the owner, or by any proceedings of condemnation. 3. Nor has the consent of owners been had or asked, in such a way as to justify the condemnation proceedings instituted here or elsewhere. Nor were such profile maps filed as would enable owners of land to understand or be informed as to the right of way sought to be subjected. (4) 1. The petition in this case does not even purport to make (nor in fact make) parties defendant to this suit, "the owners of all such parcels as lie within the county or circuit," as the statute expressly requires. R. S. 1899, sec. 1264. 2. Sections 1264 and 1267 contemplate only one condemnation proceeding in each county or circuit through which the proposed road is to run and requires all persons interested in the land to be made parties thereto. 3. The statute must be strictly complied with, and the record itself must affirmatively show this. Wherever it has been attempted by summary proceedings to divest the owner of his property, the record must affirmatively show that the conditions precedent to the exercise of such extraordinary powers have been fully complied with. Anderson v. Pemberton, 89 Mo. 66; Brush v. Detroit, 32 Mich. 43.
Moore & Handy for respondent.
(1) (a) It is not necessary to join all persons owning tracts of land along the line of the proposed road, in one county or circuit, as parties defendant in one petition. Railroad v. Railroad, 129 Mo. 70; R. S. 1899, secs. 1161, 1267. (b) Sections 1264, 1266 and 1267 should be read and construed together. Section 1264 provides, "to which petition the owners of all such parcels as lie within the county or circuit shall be made parties defendant." Section 1267 provides that any number of parcel owners resident in the same county or circuit may be joined in one petition as parties defendant. The point is that section 1267 is controlling as to parties, and this court substantially so held in the following cases: Railroad v. Kellogg, 54 Mo. 334; Railroad v. Carter, 85 Mo. 448. These two last-named cases have been overruled by Union Depot Co. v. Frederick, 117 Mo. 138, so far as joinder of non-resident parcel owners is concerned, the court holding that under other provisions of the article it was proper to join non-resident with resident parcel owners. As between the two sections above quoted in other respects the force of the Kellogg and Carter cases is not impaired. (c) The proper construction of the clause quoted from section 1264 is that all persons interested in the same parcel should be made parties defendant in one petition so that a judgment might be rendered that would do justice to all and prevent further litigation. This idea is supported by Union Depot Co. v. Frederick, 117 Mo. 146. (d) These sections should be so construed that all may stand if it is possible so to do. Manker v. Faulhaber, 94 Mo. 430; Curtwright v. Crow, 44 Mo.App. 567; Sutherland on Statutory Construction, secs. 239-41; St. Louis v. Howard, 119 Mo. 41; State v. Klein, 116 Mo. 265; Andrew County v. Schell, 135 Mo. 42. (2) Appellants contend that sufficient profile maps were not filed. They have not seen proper to incorporate the maps that were filed and were introduced in evidence in the bill of exceptions; therefore, this court cannot inspect them. If the maps had been made part of the bill of exceptions this court would have the same evidence before it that the trial court had. The trial court necessarily found the maps sufficient in form and character. Corey v. Railroad, 100 Mo. 282. However, according to the witness Stahlnaker, county surveyor, the maps were sufficient and afforded data from which all necessary points could be demonstrated. Becker v. Rardin, 107 Mo. 119; Green v. Higham, 161 Mo. 333. (3) The petition pleads an ineffectual effort on the part of the plaintiff to agree with appellants as to damages to be sustained by them by reason of the taking of the tract of land described, and the proof abundantly sustains the allegation. Corey v. Railroad, 100 Mo. 282; Moses v. Section Dock Co., 84 Mo. 242; Wilkinson v. Dock Co., 102 Mo. 130. (4) Appellants cannot raise in this proceeding the question whether or not the plaintiff, respondent, had capacity to condemn a right of way. Railroad v. Railroad, 129 Mo. 62. But referring to the testimony, there is no evidence that respondent did not comply with the law as to time of commencement of work on its road and the expenditure of the statutory amount within the first year and subsequent years.
OPINION
In Banc
-- The plaintiff railroad company is seeking by this proceeding to condemn a right of way for its road through certain land of defendants in Jackson county. On filing the petition commissioners were appointed to assess the defendants' damages and in due time they made their report assessing the value of the property taken at $ 800 and the damages to the remaining property at $ 250; exceptions to the report were filed by defendants, which coming on to be heard, upon the pleadings and evidence, were by the court overruled, and a judgment of condemnation accordingly was entered, from which judgment the defendants have taken this appeal.
There are two points of chief importance presented for our consideration; the first is the insistence that the plaintiff has no corporate franchise to build a railroad between the termini stated in the petition; the second, that the owners of all the lands within the county to be taken for the plaintiff's right of way, with whom the plaintiff has been unable to agree on the compensation to be paid, are not made parties defendant to the suit.
I. In the petition the plaintiff states that it is a corporation "organized under the laws of Missouri with full power and authority to construct, maintain and operate a standard guage railroad for public use in the conveyance of persons and property in the State of Missouri from a point commencing at or about Forty-eighth street and Main street in Kansas City Jackson county, Missouri, to a point in Swope Park, in said Jackson county, Missouri, in section 11, township 48, range 33, across and over the tract of land hereinafter mentioned; that the general direction of said line of railroad built and to be built by your petitioner from said beginning point is easterly and southerly."
The petition then goes on to state that the plaintiff had made and filed in the office of the county clerk a profile map of the route proposed and intended to be used in the construction and operation of "said railway," etc. Then follows a statement that the defendants are the owners of a certain tract of land through which it is proposed to construct the road and a description of the land. After which it is stated that the general course of the proposed road is northeasterly through this land and that it is "an extension of the petitioner's line of railway from said beginning point above mentioned."
On the trial the plaintiff to prove its corporate authority to do what it was seeking to do introduced in evidence its charter, from which it appeared that it was organized as a railroad corporation under the laws of this State; that "Kansas City in Jackson county, Missouri, and Lee's Summit in Jackson county, Missouri, are the places from which and to which the road is to be constructed, maintained and operated," and that its length was to be twenty miles.
When this proof was made...
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