Kinealy v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 30 April 1879
• Citation: 69 Mo. 658
• Parties: KINEALY et al., Appellants, v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY.
• Court: Missouri Supreme Court

69 Mo. 658

KINEALY et al., Appellants,

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Court of Appeals.

Plaintiffs' petition alleged the incorporation of the North Missouri Railroad Company by special act, approved March 13th, 1850, for the purpose and with the power of constructing and operating a railroad from St. Louis to a point in the northern boundary of the State; that, by an amendatory act, approved January 7th, 1853, said company was further empowered to extend and operate its road from St. Charles to St. Louis, provided all of said intended road should be completed prior to January 8th, 1861; that, prior to this last date said company constructed its road from St. Charles to North Market street, in the city of St. Louis, which street it established as its terminus; that this road passed through the lands of Jennings, in the county of St. Louis, and upon said lands the company erected a depot, known as Jennings station, which is made a principal and ordinary stopping place for all trains running on its road, for taking on and putting off freight and passengers, and which it proclaimed at all times thereafter to be such a depot and stopping place; that, afterwards, on the 22nd day of February, 1866, one of the plaintiffs, being the wife of the other, relying on the establishment of said depot, and the operation of said road, published and proclaimed as aforesaid, by said company, and for the obtaining the advantages and use of said depot and of the passenger and freight trains run on said road, purchased certain parcels of land situated within a quarter of a mile of said depot, and which derived their chief value from their vicinity to the same, and erected thereon a dwelling house and outbuildings; that, on the 1st day of October, 1868, the said company executed a mortgage of its equity of redemption in said road and franchises, and on the 26th day of August, 1871, by deed delivered on that day, the mortgagees claiming authority under said mortgage assumed to convey said equity of redemption to one Jessup; that, on the 2nd day of January, 1872, defendant was incorporated as a railroad company under the general law, and set forth in its articles of incorporation that the railroad it desired to maintain and operate was that theretofore constructed by the North Missouri Railroad Company, and about two miles of railroad in the city of St. Louis between Plum street and a point in said railroad at North Market street, and such other tracks as might be deemed necessary for connections with the bridge then being built at said city over the Mississippi river; that before any part of these portions of railroad was constructed, said Jessup conveyed to defendant the equity of redemption acquired by him in the said franchises and property of the North Missouri Railroad Company, and no further or other interest therein; that defendant, thereupon, took exclusive possession of said North Missouri Railroad, and operated it as its own exclusive property; that, on the 5th day of July, 1876, defendant, while still operating said North Missouri Railroad, without having any other or further powers than those stated, constructed a new track from the intersection of Fourteenth street and the Pacific Railroad to Ferguson station, a point on the North Missouri Railroad ten miles northwest of said terminus at North Market street, no part of which track approached within two miles of Jennings station or North Market street, or of any part of the North Missouri Railroad between said street and station; that, thereupon, defendant withdrew from its track between said street and station the passenger and through freight trains that theretofore ran over said track, and converted said portion of its railroad into a local freight line, and ceased to run any passenger or freight train from or to the western or northern terminus of said North Missouri Railroad, or from or to any point on said railroad, north or west of Warrenton, about seventy-five miles from the city of St. Louis, whereas the main road extended at least 200 miles north and west of Warrenton; that the withdrawal of said trains was unlawful and unauthorized, and that in consequence thereof the value of plaintiff's said real estate had been greatly depreciated, and that she had been damaged in the sum of $6,000, for which judgment was asked.

To this petition defendant demurred, assigning the following grounds: 1 Because said petition does not state facts constituting a cause of action against the defendant. 2. Because said petition does not aver that the plaintiffs, or either of them, ever made any investment or expended any money upon the faith of any act, representation or agreement of the defendant. 3. Because said petition does not charge that the defendant has abandoned, or threatened to abandon, any portion of its line of railroad, or that it has ever failed to furnish necessary and reasonable accommodation for the public upon and over every portion of its railroad in the petition described.

This demurrer was sustained, the plaintiffs refused to plead further, final judgment on the demurrer was rendered for defendant, from which plaintiffs appealed to the St. Louis court of appeals, where the judgment was affirmed, pro forma, and plaintiffs appealed to this court.

M. Kinealy for appellants.

The respondent, by its demurrer, admits that it has constructed a new line from Ferguson station, ten miles from St. Louis, to the latter city, which it uses for its through freight and passenger trains; and for those trains has abandoned what was formerly its main line, from Ferguson to St. Louis, ten miles in length; that this latter line passes by appellant's land near to which a depot is located, and that in consequence of the abandonment of the main line, the appellant's property has depreciated $6,000. If this abandonment has been made without authority of law, the appellant is entitled to recover her damages. B. & S. R. R. Co. v. Compton, 2 Gill 36; Jackson v. Jackson, 16 Ohio St. 168; Little Miami R. R. Co. v. Naylor, 2 Ohio St. 235; N. O., & c., R. R. Co. v. Moye, 39 Miss. 374; Atkinson v. Marietta & C. R. R. Co., 15 Ohio St. 36; 1 Addison on Torts, 18; Turnpike Co. v. Hosmer, 12 Conn. 365; Lackland v. The N. M. R. R. Co., 31 Mo. 184; Carlin v. Paul, 11 Mo. 32; Lackland v. The N. M. R. R. Co., 34 Mo. 259; Smith v. Boston, 7 Cush. 254.

Wells H. Blodgett for respondent.

1. The question whether the defendant, in constructing its new line and withdrawing its through trains from the old route past Jennings station, has acted in violation of its charter, or the law under which it was created, cannot be considered or determined in this proceeding. Martindale v. K. C., St. Jo. & C. B. R. R. Co., 60 Mo. 510; Land v. Coffman, 50 Mo. 243; Shewalter v. Pirner, 55 Mo. 218; Myers v. Croft, 13 Wall. 291; Smith v. Sheely, 12 Wall. 358; Angell & Ames on Corp., (10 Ed.) § 777. If it were true that in doing the acts complained of the defendant passed the exact line of its power, it belongs to the government of the State to exact a forfeiture of its charter, and it is not for the courts, in a collateral way, to determine the question of misuser. Chambers v. St. Louis, 29 Mo. 543. 2. The plaintiff could not, upon the allegations in her petition, maintain an action against the defendant to recover such damages as she may have sustained in common with every other citizen of the same community. Proprietors of Quincy Canal v. Newcomb, 7 Met. 276; Proprietors of Locks and Canals v. N. & L. R. R. Co., 10 Cush. 389; Smith v. City of Boston, 7 Cush. 254; Paine v. Partrich, Carthew 191; Hubert v. Groves, 1 Esp. 148. 3. The action could not be maintained upon the theory that there was a breach of an implied contract between the plaintiff and defendant. Field on Damages, p. 35.

1. RAILROADS: damages: change of route: withdrawal of trains: violation of charter a question for the State only.

SHERWOOD, C. J.

Whether the defendant acted in violation of its charter, when constructing its new and withdrawing its trains from its old route past Jennings station, is a question we do not propose to discuss, as it is a question which can only be raised by the State, except where such collateral inquiry, by a private citizen, is expressly granted by law. Martindale v. R. R. Co., 60 Mo. 510, and cases cited.

2. ______: damages must be special and peculiar, when.

But disregarding any consideration of this nature, plaintiffs' standing in court is not thereby bettered; for they do not allege that the injury complained of is one special and peculiar to the party complaining; an injury, in short, not shared by the other members of the community. For aught that appears in the petition, every lot owner in Jennings station, every owner of real estate in the vicinity, is as much damaged as is the wife of plaintiff by the withdrawal of defendant's trains and the consequent depreciation in the value of real estate. It is well settled that where a highway is altered, obstructed or altogether vacated, no action will lie except by him who “has greater trust or incommodity than every other man has.” Holman v. Townsend, 13 Met. 297; Stetson v. Faxon, 19 Pick. 147, and cases cited; Brainard v. R. R. Co., 48 Vt. 107. In the case last cited, where a plank road had been located through plaintiff's land, which route was afterwards condemned and applied to the use of a railroad company, it was said, that “the injury that the plaintiff sustained by the loss of the use of the plank road, is one that he sustains in common with the whole public. Every person who was accommodated by the use of the plank road sustains an injury of the same character and kind, different only in degree, whether he lives upon the line of the road or elsewhere. The same...