Kavanaugh v. City of St. Louis
| Decision Date | 22 May 1909 |
| Citation | 119 S.W. 552,220 Mo. 496 |
| Parties | WILLIAM K. KAVANAUGH, Trustee, v. CITY OF ST. LOUIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.
Affirmed.
Charles W. Bates and Charles P. Williams for appellant.
(1) The grant of the right of way in this case was to the Fourth Street and Arsenal Railway Company, and to no one else. (2) Under the general law of this country, such grants made to a corporation are not assignable without express statutory authority. Such grants are to be strictly construed. Snell v. Chicago, 152 U.S. 199; 26 Am. and Eng Ency. Law (2 Ed.), 672; Endlich on Interpretation (Ed. 1888) sec. 354; Elliott on Railroads, sec. 488; Wood on Railroads (1894), sec. 455; Short on Railway Bonds (1897), sec. 142; Com. v. Smith, 92 Mass. 455; State ex rel. v. Railroad, 140 Mo. 549; Moorshead v. Railroad, 203 Mo. 148; Hovelman v. Railroad, 79 Mo. 643; Jackson v. Railroad, 87 Mo. 422; Scharff v. Meyer, 133 Mo. 428; State v. Clinton, 67 Mo. 380; Coe v. Railroad, 10 Ohio St. 372; Railroad v. Oregonian Co., 130 U.S. 1. (3) Under the constitutional, statutory and charter provisions applicable to the city of St. Louis there has been vested in that city the right to pass on the construction, operation or transfer of any street railroad whatsoever. The city has never given its consent to the transfers in this case. Hence, as against the city, these transfers are invalid. State ex inf. v. Railroad, 151 Mo. 185; Constitution, art. 12, sec. 20; Railroad v. Kirkwood, 159 Mo. 252. (4) The trial court absolutely misunderstood one of the most substantial issues before it, namely, abandonment. It was the position of the court, made manifest by his rulings, that he was going to issue an injunction regardless of that question; and that the only way the city could raise that question was by quo warranto, though he admitted the right of the city to keep its street free from nuisance. McLain v. Railroad, 90 Iowa 648; Muhle v. Railroad, 86 Tex. 464; Hastings v. Railroad, 38 Iowa 318; Henderson v. Railroad, 21 F. 368; Roanoke Inv. Co. v. Railroad, 108 Mo. 67; State ex rel. v. Railroad, 140 Mo. 552; Bell v. Tunnel Co., 36 Cal. 214. This amounted to prejudicial error. American Brewing Co. v. St. Louis, 209 Mo. 610. (5) It is fixed and unalterable doctrine of equity jurisprudence that a plaintiff who comes into a court of equity seeking relief must be prepared and willing to do equity, and that he must come into court with clean hands with respect to the particular right upon the violation of which his claim is based. 16 Cyc. 144. The plaintiff in this case has been guilty of repeated and long-continued violations of the charter rights he here asserts. He has, with respect to them, been guilty of unlawful and inequitable conduct. He should therefore be left to his remedies at law. Furthermore the decree was erroneous in not laying upon plaintiff any duty whatsoever, and not compelling him to do equity. (6) The evidence will convince any candid reader that the Wiggins Ferry Company never intended to operate the right of way in question in this case. Upon the evidence with respect to a public grant of this character, the finding should have been for the city.
Watts, Williams & Dines for respondent.
(1) The rights of street railways in the streets of a municipality are franchises; they are vested rights which may be mortgaged and sold by the company owning them. Hovelman v. Railroad, 79 Mo. 643; State ex rel. v. Railroad, 140 Mo. 539. The right to mortgage these franchises as well as other property has been expressly recognized by the Legislature. Sec. 706, R. S. 1879. And the right to transfer such franchises is recognized by art. 12, sec. 20, of the Constitution, when assented to by the municipal authorities. This assent is not required to be in any particular form; it need not be by ordinance; it may be implied from conduct, circumstances and course of dealing; or the city may be estopped by its conduct, from asserting the lack of its assent. The lack of such assent is not pleaded in either answer or crossbill; and it is claimed and asserted by respondent as trustee for The Wiggins Ferry Company, that his and its right to hold and own said franchises after mortgage foreclosure thereof cannot be assailed or tried in the present proceeding. (2) These rights having become vested under the Constitution and statutes of the State of Missouri and the ordinances of the city of St. Louis, can only be forfeited in a quo warranto proceeding brought by the State for that purpose. State ex rel. v. Railroad, 140 Mo. 539; Railroad v. Easton, 133 Pa. St. 505; Railroad v. Memphis, 96 F. 113; Railroad v. Railroad, 110 F. 879; Railroad v. Milwaukee, 36 L. R. A. 45; Bruffet v. Railroad, 25 Ill. 353; Railroad v. Wilson, 22 Conn. 435; Sturgis v. Vanderbilt, 73 N.Y. 384; Re N. Y. Elevated R. Co., 70 N.Y. 327; Railroad v. Long Branch Comms., 39 N. J. L. 28; Railroad v. Erie, 27 Pa. 380; Railroad v. Lawrenceburgh, 56 Ind. 80. (3) The State may waive the conditions or enforce them, when the continued life of a corporation is made to depend upon performance of a condition subsequent. The non-performance of the condition is not an ipso-facto forfeiture, but is a mere ground of forfeiture of which the State can avail itself by proceeding in quo warranto, or which it can waive at pleasure. Railroad v. Railroad, 110 F. 879; Gas Light Co. v. Gas Co., 40 N.J.Eq. 432; U. S. v. Railroad, 177 U.S. 435. (4) The city of St. Louis, having arbitrarily interfered with the repair and operation of the street railway, and having wilfully torn down and destroyed a portion of its poles and wires, cannot, as a defense to respondent's proceeding in equity to prevent further interference and destruction, set up and enforce the claim that respondent and its predecessors have lost their rights by abandonment and non-user. Railroad v. Railroad, 110 F. 879; Railroad v. Milwaukee, 36 L. R. A. 45. (5) A bill in equity for injunction has always been regarded by the authorities as the proper proceeding to prevent interference with rights of the nature here involved, whether such interference is by the municipality or by others. Vicksburg Water Works Co. v. City of Vicksburg, 185 U.S. 65; Railroad v. Railroad, 38 P. 986; Los Angeles v. Water Co., 124 Cal. 377, 57 P. 213. Such rights cannot be illegally or arbitrarily taken. Bridge Co. v. Dix, 6 How. (U.S.) 507; Water Supply Co. v. Brooklyn, 166 U.S. 685; Railroad v. Wilmington Co. (Del.), 46 A. 12; Railroad v. Railroad, 62 Ill.App. 502; Railroad v. Chicago West Div. Co., 87 Ill. 317. (6) A municipality may be estopped to the same extent as an individual by conduct inconsistent with the assertion of a forfeiture upon condition subsequent broken. Trust Co. v. Duluth, 70 Minn. 257, 73 N.W. 249. (7) Abandonment of an eastment acquired by grant must be supported by acts of an "unequivocal nature indicating a clear intention to abandon." Insurance Co. v. Railroad, 108 Mo. 50; State ex rel. v. Railroad, 140 Mo. 539; Curran v. Louisville, 83 Ky. 628; Dyer v. Sanford, 9 Metc. 395; Hayford v. Spokesfield, 100 Mass. 491. And "a proceeding in equity is not the proper remedy to enforce the forfeiture of a franchise." State ex rel. v. Railroad, 140 Mo. 539.
OPINION
This is an action for injunction tried in the city of St. Louis. The plaintiff, William K. Kavanaugh, claims to be the trustee of an express trust for the Wiggins Ferry Company, an Illinois corporation. The suit is against the city of St. Louis, and its street commissioner and its superintendent of city lighting. The facts pleaded and proven by plaintiff are these:
Prior to April 13, 1888, the Fourth Street and Arsenal Railway Company was a duly incorporated street railway company under laws of Missouri. By city Ordinance 14485, passed on said last-mentioned date, the said city of St. Louis authorized said street railway company to build a street railway in and along certain streets in said city. Said ordinance was accepted and the railway built. Said street railway company executed later, but very shortly thereafter, a deed of trust covering all of its said property, including its franchise, in which deed Charles Parsons was made trustee. This instrument was to secure the payment of $ 50,000 in bonds at the time issued by the company. Under this deed, owing to default having been made, a sale was had in September, 1898, and said property was bought by John H. Overall, to whom a trustee's deed was made. Very shortly thereafter, within a few days, Overall and wife conveyed the property to John Scullin, who in September, 1903, being joined therein by his wife, conveyed to the present plaintiff. Upon the receipt of his deed Mr. Kavanaugh made and executed a trust agreement with the Wiggins Ferry Company, of which he was at the time president. In said instrument it is recited that the consideration was paid by the said Ferry Company and not by Kavanaugh, together with other proper recitals for such an instrument. It is averred that on January 30, 1905, the said Kavanaugh intended to immediately run street cars upon said streets, and that he so intends to do still. It is averred and shown that on said last-named date, the city, through its said officers, threatened to remove its poles, wires and rails from the streets and the evidence so shows. In fact the city did remove a quantity of the wires. A temporary injunction was granted, which upon trial was made permanent.
By answer the defendants charged: 1. That by section 6 of Ordinance 14485, the railway company was required to run cars at intervals of five minutes between 6 o'clock a. m. to 12 o'clock p. m. each...
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