Knapp, Stout & Company v. The St. Louis Transfer Railway Company
| Decision Date | 22 December 1894 |
| Parties | Knapp, Stout & Company, Appellant, v. The St. Louis Transfer Railway Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Reversed and remanded.
""T. J. Portis and ""T. G. Portis for appellant.
(1) Defendant had no authority whatever to construct or operate the switch track in question on Hall street as and in the manner it was done. ""Dubach v. Railroad, 89 Mo 483; Charter of St. Louis, art. 5, sec. 26, par. 2; Revised Ordinances of St. Louis, 1887, sec. 577; Revised Statutes 1889, secs. 2563, 2590, 2591; city ordinance number 15,608, sec. 1; ""Tate v. Railroad, 64 Mo. 158; ""Glaessner v. Brewing Co., 100 Mo. 508; ""Sugar Refining Co. v. Elevator Co., 82 Mo. 124; ""Glasgow v. City, 87 Mo. 682. (2) Defendant had no authority to construct or operate the switch track in question upon that part of Hall street which had, long prior to the date of said ordinance number 15,608, been reserved and set apart by said ordinance of said city of St. Louis (Revised Ordinances of 1887, sec. 577) for a sidewalk on said Hall street, and the said ordinance number 15,608 did not repeal or attempt to repeal said section 577 of the Revised Ordinances of 1887. Also see sec. 1, ordinance number 15,608; Charter of St. Louis, art. 3, sec. 26, par. 2; ""Roe v. City of Kansas, 100 Mo. 190; ""Tritz v. City of Kansas, 84 Mo. 632; ""Walker v. City of Kansas, 99 Mo. 647; ""Stephens v. City of Macon, 83 Mo. 345; R. S. 1889, secs. 2563, 2590 and 2591; ""Dubach v. Railroad, 89 Mo. 483. (3) The statutes of this state authorize the construction and operation of railroads across, along and upon streets in cities, by and with the assent of the city authorities; but they give no authority to do so in any other manner than may be prescribed by such authorities, provided that it is not in violation of any other law, city ordinance, or of the rights of abutting property owners. And section 2543, Revised Statutes of 1889, expressly provides that a railroad track laid in a street must not destroy its use as a public thoroughfare. ""Bldg. Ass'n v. Tel. Co., 88 Mo. 278; ""Smith v. Railroad, 98 Mo. 20; ""Mfg. Co. v. St. Louis, 113 Mo. 315; ""Story v. Railroad, 90 N.Y. 145. And all the cases in Missouri, from 31 Mo. 183, down to the present time. (4) The right of the abutting property owner to the use of the street, and to ingress to and egress from his property, are as much property as the lot itself, and neither the legislature nor the city can deprive him of such property, or damage it, without compensation. Constitution 1875, art. 2, sec. 21; ""Smith v. Railroad, 98 Mo. 20; ""Rude v. St. Louis, 93 Mo. 413; ""Lackland v. Railroad, 31 Mo. 181; ""Bridge Co. v. Schaubacher, 57 Mo. 580; ""Ferrenbach v. Turner, 86 Mo. 416. (5) The right of an abutting owner to access to and from the street is a private right, in the sense that it is something different from the right which the members of the public have to use the street for public purposes. Conformably to this distinction, the plaintiff, whose right of access to and egress from its property, we insist, has been unlawfully and materially obstructed, has a good cause of action against the defendant, and the circuit court should have so held. ""Rude v. St. Louis, 93 Mo. 414; 2 Dillon on Municipal Corp. [3 Ed.], sec. 730, and notes; ""Fritz v. Hobson, 18 American Law Register (U.S.), 615; Lewis on Eminent Domain, sec. 100; ""Shawneetown v. Mason, 82 Ill. 337; ""Winchester v. Stevens Point, 58 Wis. 350; ""Buckner v. Railroad, 60 Wis. 264. (6) Injunction is the proper and only remedy in this case. Damage to private property must be paid before the property should be disturbed and a court of equity will enjoin one who proposes to continuously damage private property in the manner the proof shows is being done in this case. ""Kansas City v. Railroad, 97 Mo. 467; ""State v. Lawrence, 7 Am. and Eng. R. R. Cases, 93; High on Injunctions; ""Story v. Railroad, 90 N.Y. 179.
""Thomas E. Ralston and ""Alonzo C. Church for respondent.
(1) The St. Louis Union Stock Yards Company is a public institution, exercising is franchises for public use, and its "property is devoted to a public use," "affected with a public interest," and it is "subject to public regulations." ""Munn v. Illinois, 94 U.S. 113; ""Sugar Refining Co. v. Elevator Co., 101 Mo. 204; Lewis on Eminent Domain, sec. 170; ""Dock, etc., Co. v. Garrity, 115 Ill. 115; Revised Statutes, 1889, secs. 2590, 2591; ""Clark v. Blackmar, 47 N.Y. 150. (2) The stock yards being a public institution under the law, the city of St. Louis had the clear and undoubted right to authorize the St. Louis Transfer Railway Company and the St. Louis Merchants' Bridge Terminal Railway Company to lay down and operate the switch complained of over the western portion of Hall street, for the purpose of serving the public and said St. Louis Union Stock Yards Company, and connecting with each other, which was done by ordinance number 15,608. R. S., secs. 2543, 2590, 2591; ""Mfg. Co. v. Railroad, 113 Mo. 308; ""Osborne & Co. v. Railroad, 147 U.S. 248; ""Building Association v. Telephone Co., 88 Mo. 268; 2 Dillon's Mun. Corp. [4 Ed.], note on bottom of p. 847, and top of p. 848, and note p. 855; ""Railroad v. Second Municipality, 1 La. Ann. 128; ""Knight v. Railroad, 9 La. Ann. 284; ""Block v. Railroad, 58 Pa. St. 249; ""Philadelphia v. Railroad, 58 Pa. St. 253; ""Clarke v. Blackmar, 47 N.Y. 71; ""Railroad v. People, 92 Ill. 179; ""Olney (City of) v. Wharf, 115 Ill. 519; ""Dock, etc., Co. v. Garrity, 115 Ill. 155-167. (3) Even if it could be held (which it can not) that the stock yards was a private institution, many authorities hold that the defendant could have condemned land to reach it, and the city could have authorized the laying of a sidetrack in the street to serve it. ""Deitrick v. Murdock, 42 Mo. 279; 1 Wood's Ry. Law, p. 654; ""Getz's Appeal, 3 Am. and Eng. R. R. Cases, 186; 12 Am. and Eng. Encyclopedia of Law, p. 942, note 2; ""Railroad v. Porter, 42 Am. and Eng. R. R. Cases, 170; 2 Dillon's Mun. Corp. pp. 847, 848, 855; ""Dock, etc., Co. v. Garrity, 115 Ill. 155; ""Truesdale v. Sugar Co., 101 Ill. 561; ""Mills v. Parlin, 106 Ill. 60. (4) The language of the city ordinance clearly authorized the switch to be laid to Bremen avenue upon, along and across the western twenty feet of Hall street. ""First. "A 'street' includes sidewalks and gutters." 2 Dillon's Mun. Corp. [4 Ed.], sec. 780, and note and cases cited. ""Second. Hall street being totally unimproved and without sidewalks, curbs or gutters, any reference in the language of the ordinance to laying the switch upon, along or across the "sidewalk" of Hall street, to Bremen avenue, would have been absolutely unnecessary, useless and improper. ""Third. There is nothing sacred about a sidewalk, even on an improved street, exempting it from a new public use for the public good. ""Building Association v. Telephone Co., 88 Mo. 267. (5) The fact that the switch was laid from the south line of Bremen avenue, in Hall street, and not over city blocks 1934 and 2531, as provided by the ordinance, may be ""ultra vires, or an abuse or excess of corporate powers, but it gives no right of injunction to a private citizen on that ground. The question can only be raised by the state, or defendant's stockholders, in a direct proceeding. ""Hovelman v. Railroad, 79 Mo. 632; ""Sugar Refining Co. v. Elevator Co., 101 Mo. 192. (6) The switch complained of was laid for a public use, under a valid city ordinance, along the exact route provided by said ordinance (at least in front of plaintiff's premises and to the south line of Bremen avenue, and plaintiff's prayer for relief is confined to its frontage on Hall street of forty-three feet) at the grade of Hall street and Bremen avenue and under and to the satisfaction of the street commissioner, as provided by ordinance number 15,608. Injunction will not lie under these circumstances. ""Building Association v. Telephone Co., 88 Mo. 258; ""Mfg. Co. v. Railroad, 113 Mo. 308; ""Osborne & Co. v. Railroad, 147 U.S. 248. ""First. Under the facts of this case, if plaintiff has any remedy (which is denied), it is simply an action at law to recover damages. ""Osborne & Co. v. Railroad, 147 U.S. 248. ""Second. The operation of the switch track complained of can only be enjoined, in the state of Missouri, upon the ground that its effect is to destroy Hall street, for public use, across Bremen avenue and in front of plaintiff's premises, while the evidence totally fails to show any substantial impairment of the use of the street. ""Dubach v. Railroad, 89 Mo. 483; ""Lockwood v. Railroad, 122 Mo. 86. (7) Plaintiff is barred of relief by injunction by laches. 1 High on Injunctions [3 Ed.], secs. 618-643.
Black, C. J. Barclay, J., not sitting. The other judges concur.
The plaintiff corporation owns a parcel of land in the city of St. Louis, fronting one hundred and seventy-eight feet on the north line of Bremen avenue, and extending north three hundred and twenty 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....
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