Kansas City Suburb. B. R. Co. v. Kansas City, St. L. & C. R. Co.

Decision Date16 December 1893
Citation24 S.W. 478,118 Mo. 599
CourtMissouri Supreme Court
PartiesKANSAS CITY SUBURBAN BELT R. CO. v. KANSAS CITY, ST. L. & C. R. CO. et al.

2. The intersection of plaintiff's and defendant's railroads was almost entirely within the limits of a street, and near the western end of defendant's storage yard. Plaintiff's road crossed two main tracks and three side tracks of defendant's road, reducing the storage capacity on two side tracks 60 feet each, and on another 70 feet. Defendant's storage yards lay almost entirely east of the crossing, and extended about three-fourths of a mile in that direction. Held, that this did not constitute a serious interference with defendant's franchise.

3. Erroneous instructions given the commissioners by the court cannot be complained of by defendant, when given at its request.

4. Const. art. 12, § 4, provides that the right of trial by jury shall be inviolate in all trials of claims for compensation, when any corporation shall be interested for or against the exercise of the right of eminent domain. Rev. St. 1889, § 2738, provides that, on the filing of the report of commissioners in condemnation proceedings, the court may order a new appraisement on good cause shown, which new appraisement shall, at the request of either party, be made by a jury. Held, that defendant is entitled to a jury trial on the question of compensation only, and cannot have the commissioners' report set aside as a whole, and the question as to the manner of the crossing also determined by jury.

5. After the commissioners made their report, and after defendant filed its exceptions thereto, the latter applied for a change of venue on the ground of plaintiff's undue influence over the inhabitants of the county. Held, that the court did not lose its jurisdiction by such application, and, the application not being based on the judge's prejudice, he properly passed on the exceptions to the report as to the place and manner of making the crossing before granting the change of venue for trial of the question of compensation by jury.

6. On the trial to determine the amount of compensation to be paid defendant, opinions of witnesses as to the probability of accidents at the crossing are not admissible to prove a depreciation in the value of defendant's property.

7. In such case no allowance can be made defendant for delay, inconvenience, or damage arising from a part of the crossing which is in a street.

8. Evidence of damage arising from the stopping of trains at the crossing, in compliance with city ordinances requiring all trains to stop when within 75 feet of a railroad crossing, was inadmissible, as defendant's charter subjects it to all reasonable regulations of a public character then in force, or that might thereafter be adopted.

9. An instruction that petitioner has no greater right to locate and construct and operate its railroad across the land and tracks of defendant than it has to locate and operate the same across the lands of an individual, and that just compensation must be paid for taking and damaging the property in the one case, as in the other, was properly refused, when it was a mere abstract proposition of law, with nothing in the pleadings or evidence to justify it.

Appeal from circuit court, Clay county; James M. Sandusky, Judge.

Action by the Kansas City Suburban Belt Railroad Company against the Kansas City, St. Louis & Chicago Railroad Company and the Chicago & Alton Railroad Company. From a judgment for plaintiff, defendants appeal. Affirmed.

Gates & Wallace, for appellants. Trimble & Braley, for respondent.

BURGESS, J.

This is an action by the Kansas City Suburban Belt Railroad Company, petitioner, against the Kansas City, St. Louis & Chicago Railroad Company and the Chicago & Alton Railroad Company, lessees of the last-named company, to condemn a right of way for its double-track railroad across the lands and tracks of the defendants, near Gillis street, in Kansas City, and also at a point about three miles further east, near the Blue river. The proposed business of the petitioner is that of a terminal road for lines entering the city, and also for switching and suburban travel. In 1872, Kansas City, by ordinance, duly granted to the defendants the right to locate their railroad at grade across Gillis street, and by section 6 of said ordinance reserved to itself (the city) "the right at any time to exercise at any and all points and places within its limits all the rights and powers conferred upon or granted to said city by the 32nd clause of section 1 of article 3 of the present charter of the city of Kansas, being an act of the general assembly of the state of Missouri, approved March 24, 1875, and that the rights of the said city granted by the said clause are in no way whatsoever to be impaired by the terms and provisions of this ordinance." The rights so reserved to the city in section 6 of said ordinance, as shown by the thirty-second clause of section 1 of article 3 of said charter, were the rights conferred by the legislature upon the city council, which provided that the said council shall have power, within the jurisdiction of the city, by ordinance, "to direct and control the laying and construction of railroad tracks * * * in the streets and alleys * * * and to direct the use and regulate the speed of locomotive engines within the limits of the city. * * *" In 1890, Kansas City, by Ordinance No. 1,523, established the grade of Second street and of Gillis street, as well as of all streets intersecting Second street between Wyandotte and Gillis, and granted to the plaintiff the right to locate and operate its railroad on Second street, and across other streets, at the grades as so established. By sections 2 and 4 of said ordinance the grade of Gillis street was established at the tops of the rails of defendants' road, and plaintiff, in express terms, was granted the authority to cross defendants' tracks in said Gillis street at said grade. That part of plaintiff's road involved in this controversy, as authorized by its charter and by the ordinances of the city, was in Second street, running from Wyandotte street east to Harrison street; thence east to the intersection of defendants' road with Gillis street; thence across defendants' tracks in Gillis street to the eastern city limits. The Chicago & Alton road runs east from the Union Depot, along the Missouri river bottom, and near to the south bluff. The petitioner's road commences on the bluff at Second and Wyandotte streets, and runs east on Second street, down a steep hill, striking the river bottom at Gillis street, the place of the crossing chiefly in controversy, running on Second street almost to Harrison, and then curving north, and crossing Gillis just north of First. The descent commences at Main street, and continues until after the route passes both the Alton and the Missouri Pacific tracks. From Main to Grand avenue the fall is 204 feet to the mile; from Grand avenue to Holmes, a distance of 1,300 feet, 116 feet to the mile; from this place to the place of the crossing of the Missouri Pacific, a distance of about 400 feet, the grade is 52 feet. After plaintiff's road and grade were so fixed by the city authorities, it undertook to agree with the defendants as to the point and manner of crossing their road at Gillis street, and at another point about three miles east of that, near Blue river, and as to the compensation to be paid therefor, but were unable to arrive at any agreement. Then this suit was instituted to condemn a right of way for the plaintiff's railroad across the lands and tracks of the defendants in Gillis street, and also at the point near Blue river, and asked the appointment of commissioners to fix the point and manner of such crossings, and to determine and assess the compensation that should be allowed to the defendants therefor. On the day set for the appointment of commissioners, the defendants appeared and filed answer, alleging, among other things, that a grade crossing would be dangerous, and would materially interfere with the use of defendants' property. The court refused to hear evidence, then, on the matters set up in the answer, but appointed commissioners, and afterwards heard and determined all the matters set up in the answer. The commissioners viewed the property, and consumed several days in hearing the testimony of witnesses and the argument of counsel. The commissioners, after hearing the evidence and argument, came into court, and propounded to the court the following questions: "First. If an overhead crossing is decided upon, can commissioners require defendants to pay any part of the cost of the viaduct? Second. Can commissioners decide upon a grade crossing for a given time, and thereafter an overhead crossing?" After the court had received and read the questions, the defendants' counsel requested the court to answer both questions in the negative, and the court, at the request of the defendants, did give instructions to the commissioners, in effect answering both of said questions in the negative. Defend...

To continue reading

Request your trial
53 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT