Kansas City, St. J. & C. B. R. Co. v. St. Joseph Terminal R. Co.

• Decision Date: 04 February 1889
• Citation: 10 S.W. 826,97 Mo. 457
• Parties: KANSAS CITY, ST. J. & C. B. R. CO. v. ST. JOSEPH TERMINAL R. CO.
• Court: Missouri Supreme Court

10 S.W. 826

97 Mo. 457

KANSAS CITY, ST. J. & C. B. R. CO. v. ST. JOSEPH TERMINAL R. CO.

Supreme Court of Missouri.

February 4, 1889.

1. RAILROAD COMPANIES — USE OF STREETS — EXCLUSIVE RIGHTS — CROSSINGS — COMPENSATION.

Condemnation proceedings having been instituted by a city to extend a street through lands of plaintiff railroad company, the damages were agreed upon, and a decree entered by consent, which, after condemning the land for street purposes as prayed for in the petition, provided that plaintiff "shall have the right to keep and maintain its present tracks and switches upon said land, and shall have the right to construct such other tracks, switches, and turnouts upon said land, and across said street, when opened, as it may deem necessary for the transaction of its business." Held, that this privilege was not exclusive, but was equivalent merely to the ordinary permission given to railroad companies to occupy streets with their tracks, and that plaintiff was not entitled to compensation, either under such privilege or as abutting owner, for the incidental injury by delay which would result from the construction and operation of defendant's proposed track along the street and across plaintiff's tracks.

2. EMINENT DOMAIN — TAKING PRIVATE PROPERTY — COMPENSATION.

Such delay, caused by the occasional occupation by defendant's trains of the space in the street where the tracks of the two companies cross, at the same time when such space is needed by plaintiff for its trains, is not a taking or damaging of private property, inasmuch as both have an equal right to use the highway.

3. SAME — EVIDENCE.

The fact that a part of the consideration for the agreement by which plaintiff consented to the decree condemning its land for the street was the compromise of a claim against it by the city for breach of contract to build a depot within the city limits, is immaterial, as it can afford no light in interpreting the decree.

Appeal from circuit court, Buchanan county; OLIVER M. SPENCER, Judge.

Ramey & Brown, George W. McCrary, and W. D. B. Motter, for appellant. Strong & Mosman and Huston & Parrish, for respondent.

BRACE, J.

This is an appeal from a decree of the circuit court of Buchanan county, enjoining the defendant from entering upon, or interfering with, plaintiff's several railroad tracks, as now constructed and operated, on, over, and across Fourth street, in the city of St. Joseph. The defendant at the time of the filing of the petition was engaged in constructing its track on Fourth street, was approaching the tracks of plaintiff, and purposed crossing them, claiming the right to do so by virtue of an ordinance of the city of St. Joseph duly passed and approved January 7, 1887, granting it "the privilege of laying down, constructing, using, and maintaining forever along Fourth street a single railroad track from the south line of Sacramento street to the north line of Lafayette street." The following map or diagram represents the relative situation of the grounds of the contestants, the tracks of plaintiff as established and operated, and the points of their crossing by the proposed track of the defendant. The plaintiff's grounds and tracks are in yellow, and the defendant's in red.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It will be observed from the map that the defendant proposes to cross six of the plaintiff's tracks on Fourth street, and that at the points of crossing the plaintiff is the owner of the property abutting said street on each side thereof. Prior to September, 1878, the plaintiff was the absolute owner also of the strip of ground between its said abutting premises, designated on the map as "Fourth Street," with its several tracks as located thereon, and was operating the said several tracks in its business as a common carrier of passengers and freight, in connection with its tracks on its adjoining property, of which the street then formed a part.

At the September term, 1878, of the circuit court of Buchanan county, in a proceeding instituted by the city of St. Joseph against the plaintiff herein, to condemn property for the extension of Fourth street, in said city, brought to said court by appeal from the mayor's court, the following decree was rendered and entered of record in said circuit court:

"The City of St. Joseph vs. The Kansas City, St. Joseph & Council Bluffs Railroad Company. Appeal.

"This case is submitted to the court without the intervention of a jury, and by agreement of the parties the court assesses the damages to defendant, for and on account of the matters alleged in plaintiff's petition herein, at one dollar. It is therefore considered by the court that defendant recover of plaintiff one dollar, and its costs before the mayor in the condemnation proceedings, and the plaintiff recover of defendant all costs of the appeal. And it is ordered, adjudged, and decreed that the right of way through the lands of defendant for the extension of Fourth street, as prayed in said petition, be, and hereby is, vested in the plaintiff, said right of way being bounded as follows, [here follows a description of the ground of plaintiff embraced within said street, including the land at the crossing in controversy; and then proceeds]. Said defendant shall have the right to keep and maintain its present tracks and switches upon said land, and shall have the right to construct such other tracks, switches, and turnouts upon said land, and across said street when opened, as it may deem necessary for the transaction of its business, subject to such grades as may be established by the city upon said street."

The plaintiff since the rendition of the foregoing decree has continued to use and operate these tracks across Fourth street the same as before. The ground before and since the extension of said street through it is denominated by the witnesses the "Middle Yard," and is used as a freight-distributing yard, in addition to its use as a roadway for plaintiff's trains, both passenger and freight.

Its use, and how that use will be affected by the operation of defendant's proposed track, may be appreciated from the following condensed statement of the testimony of one of the witnesses, read with reference to the foregoing map: W. F. Daily testified "that he was yard-master in charge of plaintiff's St. Joseph yards, and as such had charge of their operation. That plaintiff has two freight depots west of Fourth street, and north of the point shown on the map, — one at the foot of Third street, and one at the foot of Second street, two or three hundred feet apart. That the middle yard lies between Mitchell avenue and La Fayette street, north and south. That the north track in the middle yard leads to the gas-house, for loading and unloading their cars; the next track is a team track; the next, a transfer track, used for making transfers to and from the Hannibal & St. Joseph Railroad; the next, the main-line passenger track to the Union depot; the next two, team tracks for loading and unloading cars with teams. That the next track leads to the Badger Lumber Company's yards, used for loading and unloading cars, and for storing transfers. Then there are two spurs running into the other yard; also that there is a main-line passenger track leading to the round-house, used for specials, and to go to the Consolidated Tank-Line Company and the Anheuser-Busch Brewing Company; also used for storing cars. Then comes a freight track, used for freight trains going to and coming from the round-house, and for switching purposes; also a track for storing transfers, and doing work for the Barber Asphalt Company. West of Fourth street there are tracks leading to the electric light works, and two tracks west of same, used for unloading and storing cars. That these constitute the tracks of the middle yard. All trains of plaintiff pass through this middle yard on some of the tracks named. The regular trains consist of twelve passenger and twelve freight trains. That all freight trains on plaintiff's road are stopped at a place designated as the round-house yard, about one mile south of the south end of the middle yard, where the yard-master receives them, and all trains are made up at that place. These cars are all taken to the middle yard, and are there separated and set for the different transfers, and unloading and loading tracks and...