Knapp, Stout & Co. Company v. St. Louis Transfer Ry. Co.

• Decision Date: 10 December 1894
• Citation: 126 Mo. 26,28 S.W. 627
• Parties: KNAPP, STOUT & CO. COMPANY v. ST. LOUIS TRANSFER RY. CO.
• Court: Missouri Supreme Court

28 S.W. 627

126 Mo. 26

KNAPP, STOUT & CO. COMPANY v. ST. LOUIS TRANSFER RY. CO.

Supreme Court of Missouri, Division No. 1.

December 10, 1894.

MUNICIPAL CORPORATIONS — CONTROL OF STREETS — EMINENT DOMAIN — COMPENSATION — INJUNCTION.

1. An ordinance granting permission for a switch on a public street for the use of a stock-yards company, created for "the convenience of drovers, dealers, and the public at large," is not invalid as for private purposes.

2. An ordinance granting a railroad company permission to construct a track on H. street does not limit the construction of the track to the "street," as distinguished from the "sidewalk."

3. The operation of a steam railway on a street so near to an abutting owner's building line as to unreasonably deprive him of his right of access is an additional burden, entitling him to compensation.

4. The fact that a property owner has received freight on a switch track unlawfully constructed in front of his property does not affect his right to have the track removed.

5. Injunction will lie to restrain the operation of a steam railway on a track in a street, close to plaintiff's lot, without compensation having been made to him.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by the Knapp, Stout & Co. Company against the St. Louis Transfer Railway Company for an injunction. There was a judgment for defendant, and plaintiff appeals. Reversed.

Thos. J. Portis and Thos. G. Portis, for appellant. Thos. E. Ralston and A. C. Church, for respondent.

BLACK, C. J.

The plaintiff corporation owns a parcel of land in the city of St. Louis, fronting 178 feet on the north line of Bremen avenue, and extending north 320 feet along the west side of Hall street. It carries on a planing-mill business on this property, and has extensive buildings and sheds thereon, suitable for such business. By this suit it seeks to enjoin the defendant from using and operating cars propelled by steam power on a track located on the west side of Hall street, in front of the plaintiff's property. The case is now before us on the plaintiff's appeal from a judgment dismissing the petition, on final hearing. Bremen avenue runs east and west. It is an improved street; that is to say, it has been raised from eight to ten feet above the surface of the ground, and macadamized. Hall street is 100 feet wide, and runs north and south. At the date now in question there were two double railroad tracks laid and operated on and along this street, one set owned by the Merchants' Bridge & Terminal Railway Company, and the other by the defendant, the St. Louis Transfer Railway Company. The defendant's double track runs north along the roadway of Hall street until it reaches Bremen avenue, where it curves west, and passes over the west line of Hall street, on the plaintiff's property, at a point about 50 feet north of Bremen avenue, and runs thence in a northwest direction. The switch track, the subject of this dispute, begins at the point where the defendant's double track crosses the west line of Hall street, and extends south 50 feet in front of the plaintiff's property to Bremen avenue, and thence south along what would be the west sidewalk of Hall street, to the Union Stock Yards. Hall street is unimproved, save as it has been filled up by the railway companies so as to bring their tracks to a grade with Bremen avenue. The defendant laid this switch track along the 50 feet of the plaintiff's Hall street front, on Sunday, the 21st December, 1890. The plaintiff, we conclude, had notice on Saturday that the track would be laid on the next day. It seems to have been constructed on Sunday for two purposes, — First, to avoid delaying the plaintiff's teams; and, second, to avoid the service of injunctive process until the track should be completed along the 50 feet. This suit was not commenced until the 26th February, 1891, at which time the defendant was operating the switch. The plaintiff did not procure or seek to obtain a temporary injunction. The revised ordinances of 1887, put in evidence by the plaintiff, provide that all streets 100 feet wide shall have sidewalks 20 feet wide. The proof is clear and undisputed that the switch was placed on and along what would be the west sidewalk under the terms of this general ordinance. It "is right up to the line of the plaintiff's property." The plaintiff dresses at its mill from 75,000 to 100,000 feet of lumber per day. About one-third of this amount was hauled to the lower part of the mill by teams, over the Hall street front, before the railroad track was laid down. Since that time the Hall street front has not been used because of the switch track. That the plaintiff has been and is damaged to a considerable extent by reason of this track, and put to daily inconvenience, admits of no doubt, though the extent of the damage cannot be calculated from the evidence now before us. The defendant has not at any time paid, or offered to pay, plaintiff for the damages thus sustained. The defendant justifies under Ordinance 15,608, approved 14th April, 1890, the first section of which provides that the Merchants' Bridge & Terminal Railway Company and the defendant "are authorized to lay down, maintain, and operate a switch track to connect with and for the use of the St. Louis Union Stock Yards, to wit: Beginning in the west main track of the St. Louis Transfer Railway, at a point not exceeding 50 feet north of Bremen avenue; thence southwardly, along the western portion of Hall street," etc. This section provides, further, that the northern portion of the switch, including the portion now in question, shall be owned exclusively by the defendant company, but both railway companies "shall have equal and common rights to the use of the switch." Other sections of the ordinance provide that the switch track shall be laid under the supervision of the street commissioner, and it was laid down under his directions. The plaintiff has a temporary coal bin at the southwest corner of its property, and has received considerable coal from cars left on this switch track at that place. There is other evidence to the effect that it has received a few car loads of lumber brought in over this track, though it has a switch of its own, connecting with the Wabash Railroad.

1. A contention made by the plaintiff is that this switch was constructed for private, and not public, purposes, and that the ordinance is void for that reason. The point is not well taken. The Union Stock Yards Company is a corporation created for the purpose of establishing stock yards "for the convenience of drovers, dealers, and the public at large"; and it conducts and carries on a business in conformity with such...