Lockwood v. The Wabash Railroad Company

• Decision Date: 24 May 1894
• Parties: Lockwood et al. v. The Wabash Railroad Company, Appellant
• Court: Missouri Supreme Court

26 S.W. 698

122 Mo. 86

Lockwood et al. v. The Wabash Railroad Company, Appellant

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Affirmed.

F. W Lehmann and G. S. Grover for appellant.

(1) The charter of the North Missouri railroad company, and also the ordinance of the city of St. Louis, authorized the construction of the main track and siding in Collins street. Black v. Railroad, 58 Pa. St. 249; Railroad v Municipality, 1 La. Ann. 128. (2) The charter and ordinance in question were valid acts of legislative authority, and the use of streets authorized by them is a public use, consistent with the purposes for which streets are dedicated or established. Railroad v. City, 10 N.J.Eq. 352; 6 Whart. 15; Railroad v. City, 66 Mo. 228; Ass'n v. Telephone Co., 88 Mo. 258; Refining Co. v. Elevator Co., 82 Mo. 121; Railroad v. Railroad, 111 Mo. 666; Commonwealth v. Railroad, 27 Pa. St. 357. (3) The obstruction to the use of the streets by the general public, forbidden by the law to the railroad company, is that resulting from structures which present permanent physical obstacles to free passage along the street, and is not the interference or impediment to free general use resulting from railway travel and transportation over the street. Lackland v. Railroad, 31 Mo. 180; Porter v. Railroad, 33 Mo. 128; Lackland v. Railroad, 34 Mo. 259; Randle v. Railroad, 65 Mo. 325; Cross v. Railroad, 77 Mo. 318; Smith v. Railroad, 98 Mo. 20; Gauss v. Railroad, 20 S.W. 658. (4) Whether a particular street may properly be used for railway purposes, is an administrative rather than a judicial question. Railroad v. City, 92 Mo. 160. (5) Under the pleadings in this case the plaintiffs were not entitled to relief, because of the manner in which the defendant used or operated its tracks. Gauss v. Railroad, supra. (6) If the mode of the use made of the street by defendant was wrongful, that would not authorize an injunction preventing any and all use of the street by it. (7) The construction of the railroad in question having been authorized by the state and municipal authorities, an injunction against such construction will not be issued at the suit of private individuals, and particularly so where they have no special interest in the matter. Ins. Co. v. Heiss, 141 Ill. 35; Rude v. City, 93 Mo. 408.

Leverett Bell for respondents.

(1) The mayor's permit is void. No authority is vested in that officer to grant the right to occupy a street in the city with railroad tracks to be operated by locomotives and cars. 2 R. S., p. 2099; Owen v. Railroad, 83 Mo. 454; St. Louis v. Railroad, 114 Mo. 25. (2) Ordinance 15,816 by its terms purports to authorize a single track on Collins street, between Carr street and Franklin avenue (called Cherry street in the ordinance); and the appellant has constructed two tracks and two switches on the street and is making use of the street as a car yard and passenger station in violation of law. (3) The laying of the track on Collins street withdraws it from public use and this the city can not authorize. Com. v. Frankfort, 17 S.W. 287; Railroad v. Applegate, 8 Dana, 294; Crosby v. Railroad, 10 Bush. 288; Ruttles v. Covington, 10 S.W. 644.

OPINION

Gantt, P. J.

This is a proceeding for injunction by plaintiffs who are abutting property owners on Collins street, in the city of St. Louis, between Franklin avenue and Carr street, to prevent the defendant, a steam railway company, from constructing, maintaining and operating its railway along Collins street between Carr street and Franklin avenue, with a prayer for general relief.

The petition alleges: That the plaintiffs are the owners of certain described property on Collins street, between Carr street and Franklin avenue. That this property is valuable, is worth more than $ 30,000, and that its access to Collins street is an important element in its value, and that it is covered with permanent buildings. That the defendant, by ordinance of the city of St. Louis number 15,816, approved September 3, 1890, was granted permission to construct, maintain and operate a branch of its road with a single track along Collins street, in front of the plaintiff's property, and elsewhere, as specified in the ordinance. The ordinance itself is set out in haec verboe. That Collins street, between Carr street and Franklin avenue, and in front of the plaintiffs' property is a narrow street, having a width from building line to building line of forty feet, and a sidewalk on each side of the street eight feet in width, leaving a roadway of twenty-four feet.

That the defendant has constructed and laid down on the east half of the roadway of Collins street, in front of plaintiffs' property, a single railway track, under the alleged authority of the ordinance aforesaid, but has not, up to the time of the filing of the petition commenced operating locomotives, cars and trains thereon, and that it now threatens and purposes so to do, unless restrained by the process of the court. That the defendant is engaged in laying and constructing a second railway track on the west half of the roadway of Collins street, in front of plaintiffs' property, by virtue of a permit given by the mayor of the city of St. Louis, under date May 21, 1891. This permit is set out in haec verboe. That this permit has no legal force or effect, and is void.

That this construction, maintenance and operation of said railway tracks, or either of them, along Collins street, in front of plaintiffs' property, will hinder and prevent the public from using the street; will exclude travel, passage and business therefrom; will exclude all vehicles, and will destroy the use of the street as a public thoroughfare. And plaintiffs charge that the character of Collins street, between Carr street and Franklin avenue, is such that the railway tracks thereon, or either of them, can not be operated without preventing the public from using the street, and that under the law the city of St. Louis, can not, nor can its mayor or municipal assembly authorize such use of a street as will destroy its use as a public thoroughfare, and that ordinance 15,816, so far as it attempts to authorize the construction, maintenance and operation of a steam railway track in Collins street, is absolutely null and void.

Plaintiffs state that by reason of the construction, maintenance and operation of said railway tracks, or either of them, at the points named, their property will be greatly depreciated and damaged in its selling and rental value, and the damages which will accrue to to them will differ in degree and kind from those which will accrue to other members of the community, or to the public at large, from the same causes. They pray, therefore, that the defendant may be forever enjoined from constructing, maintaining and operating the said railway tracks, or either of them, along Collins street, between Carr street and Franklin avenue, and for such other relief as they may be entitled to.

To this petition the defendant filed an answer, in which it admits that it has a corporate existence as a railroad company under the laws of the state of Missouri, and that it is engaged in maintaining and operating a steam railway, as alleged in the petition. Every other matter contained and set forth in the petition is denied.

By way of further answer defendant states that the North Missouri railroad company was a railway corporation duly organized by special act of the general assembly of the state of Missouri, entitled: "An act to incorporate the North Missouri railroad company," and approved March 3, 1851, and "An act to amend an act entitled an act to incorporate the North Missouri railroad company," which amendatory act was approved January 7, 1853. That under and by virtue of section 11 of said act of March 3, 1851, the North Missouri railroad company was duly empowered to build its railroad along and upon any street, or any road or wharf of any town or city, and over a stream or highway in the state of Missouri, and that under and by virtue of section 9 of the act of January 7, 1853, said company was authorized to locate, construct and operate a railroad from the city of St. Charles to the northern boundary line of the state of Missouri, and from the city of St. Charles to any point in the city of St. Louis, and also to construct and operate lateral or branch railroads to any point. The answer alleges that the Wabash railroad company is the successor to the North Missouri railroad company, and is entitled to all its rights, privileges and franchises, and the various links in chain of title from the North Missouri railroad company to the Wabash railroad company are set forth in answer; but as no question is made in the case with respect to these, they need not be repeated here.

The answer also pleads and sets out ordinance of the city of St. Louis, number 15,816, and the permit of the mayor, dated the twenty-first day of May, 1891. It is further set out, that in pursuance of the authority conferred by the special act of the legislature of the state of Missouri hereinbefore referred to, and by virtue of the general laws of the state, and the ordinance of the city of St. Louis, the defendant did construct and now operates a branch of its railroad in the state of Missouri, along and upon Collins street, in the city of St. Louis.

The plaintiff filed a reply, denying all the allegations of the answer, and affirmatively setting up that the special acts of the legislature pleaded in the answer constitute no defense to the plaintiff's cause of action, because the defendant had so constructed its railroad along Collins street, from Carr street to Franklin avenue, that the...