Kansas City v. Kansas City Belt Railway Company

• Decision Date: 14 March 1905
• Citation: 86 S.W. 190,187 Mo. 146
• Parties: KANSAS CITY v. KANSAS CITY BELT RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

86 S.W. 190

187 Mo. 146

KANSAS CITY v. KANSAS CITY BELT RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 14, 1905

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed.

Lathrop Morrow, Fox & Moore and Samuel W. Sawyer for appellant.

(1) The court erred in excluding evidence as to the expense necessarily imposed on appellant by reason of this proceeding. 8 Am. & Eng. Ency. Law (2 Ed.), 380; 26 Am. & Eng. Ency. Law (2 Ed.), 646; 1 Rorer on Railroads, 554; 1 Redfield on Railways (6 Ed.), 420; 2 Lewis on Em. Domain (2 Ed.), sec. 491; City of Kansas v. Railroad, 102 Mo 633; McQuillin on Municipal Ordinances, secs. 289, 576; Hook v. Railroad, 133 Mo. 313; Railroad v Gordon, 157 Mo. 71; Railroad v. Board of Commissioners, 45 Kan. 716; Board of Commissioners v. Railroad, 46 Kan. 104; Railroad v. Chautauqua, 49 Kan. 763; In re Opening First St., 58 Mich. 648; Railroad v. Hough, 61 Mich. 507; Commissioners v. Railroad, 90 Mich. 385; Commissioners v. Railroad, 51 Am. & Eng. R. R. Cases 525; Grand Rapids v. Bennett, 106 Mich. 528; Detroit v. Railroad, 112 Mich. 304; Railroad v. Dist. Court, 42 Minn. 247; Railroad v. Porter, 43 Minn. 527; Morris, etc., Co. v. State, 4 Zabr. (N.J.) 62; State v. Mayor of Bayonne, 51 N.J.L. 428; Railroad v. Mayor, etc., of Newark, 61 N.J.L. 80; Railroad v. Plymouth, 14 Gray (Mass.) 155; Railroad v. Railroad, 121 Mass. 124; Railroad v. Bloomington, 76 Ill. 447; Indianapolis v. Gas Co., 27 L.R.A. 514; Prairie County v. Fink, 65 Ark. 492. (2) The court erred in refusing instruction 2, requested by the railway company. Railroad v. Mayor, etc., of Newark, 61 N.J.L. 80.

R. J. Ingraham for respondent.

(1) Appellant, by the acceptance of the franchise, made a plain, unqualified grant of a right of way for streets across its tracks, and consequently is not entitled to compensation for either the land or damages. The city acquired the same right by this language as it could by condemnation. And the law conclusively presumes that all damage ensuing from a reasonable, non-negligent exercise of the right granted is waived, or compensation therefor made in advance as a part of the consideration for the franchise. Righter v. Philadelphia, 161 Pa. St. 73; Harrelson v. Railroad, 151 Mo. 496; Fremont v. Harlan, 50 Neb. 698; Watts v. Railroad, 39 W.Va. 196; Nunnemaker v. Railroad, 47 S.C. 485; Railroad v. Hunt, 14 Ill.App. 419; Ronslarger v. Chicago, etc., 115 Ind. 106; Railroad v. Adams, 58 Tex. 476; Railroad v. Smith, 111 Ill. 363; Railroad v. Swank, 105 Pa. St. 555; Benson v. Railroad, 78 Mo. 504; McCarty v. St. Paul, 31 Minn. 278; Gilbert v. Railroad, 69 Ga. 396; Narn v. Railroad, 28 Vt. 99; Stodgall v. Railroad, 43 Ia. 26; Updegrove v. Railroad, 132 Pa. St. 540; Kirk v. Railroad, 51 La. Ann. 667; Canaber v. Railroad, 156 N.Y. 474. (2) If there could be any doubt in this case about the grant of the right of way for the street being a waiver of compensation for the performance by appellant of its obligations under the statutes and ordinances respecting crossings, this is all set at rest by the agreement of appellant as made in the franchise. The city could have put this street across without condemnation. Union Depot Co. v. Railroad, 105 Mo. 373. Under the franchise appellant was not entitled to recover for any of the items claimed. Railroad v. Adams, 58 Tex. 476; Watts v. Railroad, 39 W.Va. 196; Fremont v. Harlan, 50 Neb. 698; Harrelson v. Railroad, 151 Mo. 496; Benson v. Railroad, 78 Mo. 504. (3) Every item of prospective expense about which appellant sought to put in its evidence could arise only from a performance of those things which may be in the future required by the city, under the exercise of its police power. Railroad v. City, 97 Wis. 418; sec. 807, R.S. 1879; Hurd v. Chappell, 90 Mo.App. 317; Downing v. Railroad, 94 Mo.App. 137. (4) Independent of the franchise contract between the parties hereto, the great weight of American authority sustains the proposition that, when a highway is extended across a railroad right of way, the railroad company is not entitled to damages occasioned by its obligation to obey existing or future police regulations. Railroad v. Chicago, 166 U.S. 226; Railroad v. City, 97 Wis. 418; Railroad v. Railroad, 118 Mo. 621; Railroad v. Railroad, 105 Ill. 400; Railroad v. City, 169 Ill. 169; Railroad v. City, 166 Ill. 87; Railroad v. City, 157 Ill. 48; Railroad v. Railroad, 30 Ohio St. 604; Railroad v. Chicago, 140 Ill. 315; Railroad v. Coms., 79 Me. 386; Railroad v. Deering, 78 Me. 61; Railroad v. Brownell, 24 N.Y. 345; Thorp v. Railroad, 27 Vt. 140; State v. Railroads, 29 Neb. 412; People, etc., v. Railroad, 70 N.Y. 569; Toledo v. Jacksonville, 67 Ill. 37; Erie v. Erie, 59 Pa. St. 174; Elliott on Railroads, sec. 1114; Blair v. Railroad, 20 Wis. 254; Gillam v. Railroad, 26 Minn. 265; State ex rel. v. Railroad, 42 Minn. 247; Wilder v. Railroad, 65 Me. 332; Albia v. Railroad, 71 N.W. 541; Kansas, etc., v. Coms., 45 Kan. 716; N.Y., etc., v. Appeal, 62 Conn. 527; N.Y., etc., v. Bristol, 151 U.S. 556; Railroad v. City, 60 Conn. 1; Railroad v. Greenwich, 52 N.Y. 510.

OPINION

GANTT, J.

This is an appeal from the circuit court of Jackson county by the Kansas City Belt Railway Company, over whose tracks a crossing was condemned for the opening and establishing of Topping avenue from Independence avenue, in Kansas City, to the westerly line of Washington Park Boulevard in said city.

The proceeding is founded on an ordinance of said city, approved July 14, 1900. A jury was impaneled in accordance with the charter and ordinances of the city, and the cause heard, and on the eighth of June, 1901, the jury rendered their verdict allowing, among other damages to other parties, to the Kansas City Belt Railway Company $ 20, for crossing its tracks where the said Topping avenue intersects the same, under said ordinance. A judgment was duly entered vesting a right-of-way in Kansas City for the purposes specified in said ordinance and the cost of the said improvement assessed against the benefit district and Kansas City to pay said damages so awarded the said Belt Railway Company. A motion for a new trial was duly filed, heard and overruled, and an appeal granted to this court. The land taken by this proceeding is 30 feet wide.

At the trial in the circuit court, the railway company claimed compensation for the putting in a suitable crossing, cattle guards, signs, lights, and so forth. The circuit court excluded all evidence as to the cost of these various structures, and refused an instruction asked by the railway company directing the jury to allow the cost of such structures, to which action of the court the company duly excepted at the time. These exceptions present the sole question involved in this appeal.

The jurisdiction of this appeal is vested in this court because it is a condemnation of real estate and thereby the title of defendant is affected. [Railroad v. Lewright, 113 Mo. 660; State ex rel. v. Rombauer, 124 Mo. 598, 28 S.W. 75; Paving Co. v. Hezel, 138 Mo. 228 at 232-3, 39 S.W. 781.]

It is insisted that the circuit court erroneously excluded evidence of the cost of planking the crossing of the street over the railroad tracks; of maintaining cattle guards; of wing fences; of gasoline lamps at the crossing; and of maintaining the street for six feet outside of its rails.

For a proper understanding of these contentions, it must be noted that by an ordinance of Kansas City, numbered 22948, passed and approved August 18, 1882, the City of Kansas granted said railway company a franchise to construct, maintain and operate upon the terms and conditions therein specified, a railroad in, upon, and across all streets, avenues and alleys of said city on a route therein specified.

Section 4 of said ordinance among other things provided that:

"Where said railroad crosses any street or avenue in the city now existing or hereafter laid out, or opened for public use, on or at the grade thereof, said Kansas City Belt Railway Company shall, at all times, keep the space between tracks and eighteen inches outside of the outside rails, planked with oak planks, securely spiked down and in safe and passable condition, the whole width of the street or avenue crossed; and shall also keep the street or avenue so crossed for a distance of not less than six feet from the outside rails in good condition so as to afford a safe and convenient crossing of the tracks; and shall, if required by the city, erect and maintain at such crossings signboards, and perform all other duties devolved on the railroad company by section 807 of Revised Statutes of Missouri, and provided further, that if the City of Kansas shall at any time cause to be paved a part of any street or avenue crossing at the grade of said railroad, then said Kansas City Belt Railway Company shall, instead of planking and keeping in good condition, as aforesaid, a part of said street or avenue crossed by the railroad at grade, pave and keep well paved such part of said street or avenue so crossed; such pavement so to be made by said Kansas Belt Railway Company to be of the same kind, and constructed at the same time as the pavement outside of said part of the street or avenue crossed and adjoining the said part. The said Kansas City Belt Railway Company shall be subject to all ordinances of this city now in force concerning railroads, and to such general ordinances as may hereafter be passed by the Common Council of said city, in accordance with clause thirty-two, section 1 of article 3 of the present charter of said City of Kansas."

And section 7 of said ordinance, inter alia, provides:

"The city shall, at all times, have the right to open new streets across said railroad and right of way...