Moore Manufacturing Co. v. Springfield Southwestern Railway Co.
| Decision Date | 24 March 1914 |
| Citation | 165 S.W. 305,256 Mo. 167 |
| Parties | MOORE MANUFACTURING COMPANY, Appellant, v. SPRINGFIELD SOUTHWESTERN RAILWAY COMPANY |
| Court | Missouri Supreme Court |
Appeal from Barton Circuit Court. -- Hon. B. G. Thurman, Judge.
Affirmed.
John P McCammon for appellant.
(1) The motion to strike out part of defendant's answer should have been sustained. Those portions of the answer to which the motion went consisted: (a) Of allegations that defendant had constructed and was operating its road from Crane to Springfield, and through the city on Water street and had expended one and a half million dollars and was constructing another line of Phelps avenue and would suffer loss if not permitted to complete its Phelps avenue line; that it had spent $ 40,000 grading said avenue. Such allegations, if true, furnish no defense to plaintiff's complaint that the defendant had, in such construction, destroyed its access to its property and its business, nor to its complaint that defendant had made no attempt to ascertain defendant's damages and pay them before constructing and operating its road in front of its property as the law requires. (b) The part following the foregoing section of the answers sought to be stricken out, was a statement that after the construction of the tracks the plaintiff had built a concrete building on its property. Just what justification defendant can find for its making access to property difficult, driving away travel making approach by customers dangerous, or what defense it can find for violating the law requiring damages to be ascertained and paid before constructing or operating a railroad, in the improvement of property by the owner is not apparent. That it could be seriously considered as a defense to plaintiff's action seems incredible. (2) The injury to plaintiff's property and business was amply proven. The testimony was uncontradicted that travel in front of plaintiff's property has been driven away by the danger of being overtaken or met on that street by a train when both tracks are occupied by trains or cars; that the danger from the operation of trains over the crossover and upon the defendant's tracks, making flying switches and otherwise preventing the loading and unloading of wagons and the inconvenience of moving away and bringing back teams while so doing and the danger and inconvenience of access to plaintiff's premises caused by the construction and operation of defendant's tracks and crossovers, has greatly affected plaintiff's business and thereby reduced the value of its property; that the danger and inconvenience will be still increased if defendant is permitted to build tracks between its two track ends and connect the same completely filling the street in front of plaintiff's property with railroad tracks; and that the location of a switch target in front of plaintiff's office door and a frog in front of the warehouse door and the removal of cinders placed there by plaintiff from between the rails and ties in the pretended repair and maintenance of said tracks and crossovers, will make its access to its wareroom yet more difficult. All these facts were proven. (3) The use of the street by the defendant is inconsistent with the right of the public and with the right of the plaintiff. Dubach v. Railroad, 89 Mo. 483; Lockwood v. Railroad, 122 Mo. 86; Lumber Co. v. Railroad, 129 Mo. 455; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Refining Co. v. Elevator Co., 82 Mo. 124; Morie v. Transit Co., 116 Mo.App. 24; Corbey v. Railroad, 150 Mo. 465; Sherlock v. Railroad, 142 Mo. 172. (4) The defendant, before locating or constructing its railroad upon Phelps avenue or across Washington avenue, was compelled to obtain the consent of the city council. R. S. 1899, sec. 9250; State ex rel. v. Railroad, 206 Mo. 251; Dubach v. Railroad, 89 Mo. 488. The ordinance passed in pursuance to the statute provides that no such railroad or street railroad shall be constructed or operated until all damages to such abutting lands shall have been first ascertained and paid to the owner thereof by the person or corporation constructing said railroad. The defendant cannot claim the advantage or benefit of the ordinance without a compliance with its terms, and therefore it acquired no right under the ordinance and it cannot justify any action taken under the ordinance granting it the right of location and construction without showing a compliance with the terms of the ordinance under which it claims. Dubach v. Railroad, 89 Mo. 483. (5) Before the council could give consent for the use of Phelps avenue or Washington avenue there was one condition attached, and that was "Before a railroad can be located on any street a majority of the resident owners shall first assent thereto in writing." The foregoing is the condition precedent to the location of a railroad. (6) After the location by the council and before construction could be begun the Legislature affixed another condition, in addition to the preceding one mentioned that the railroad company should comply with the ordinances governing such matters, the council having sole authority therein, that before a railroad can be constructed or operated all damages to abutting lands must be first ascertained and paid to the owners thereof by the person or corporation constructing said railroad. 2 Lewis's Sutherland on Statutory Construction, secs. 267, 363, 365, 367.
R. T. Railey and Barbour & McDavid for respondent.
(1) The laying of a railroad track in a public street on grade, under municipal authority, and operating the road in the usual mode, is not a new public use for which compensation may be demanded by an abutting owner. Such use is merely the exercise of a right which had resided in the public since the dedication of the street to public use. Gaus & Sons v Railroad, 113 Mo. 308; Nagel v. Railroad, 167 Mo. 98; Randle v. Railroad, 65 Mo. 325; Morie v. Transit Co., 116 Mo.App. 12; DeGeofray v. Railroad, 179 Mo. 698; Donner v. Railroad, 133 Mo.App. 527; Osborne v. Railroad, 147 U.S. 248; Arbenz v. Railroad, 5 L. R. A. 377; Railroad v. Bingham, 4 L. R. A. 626; Corby v. Railroad, 150 Mo. 468; Foundry v. Railroad, 130 Mo.App. 104; Cooper Co. v. Railroad, 230 Mo. 83; Versteeg v. Railroad, 250 Mo. 76. (2) The appellant's property has not been invaded; its proprietary rights therein have not been disturbed. It has not suffered any special or peculiar damage other than that sustained by the general public, if any, and hence is not entitled to the relief sought in this action. Ruckert v. Railroad, 163 Mo. 277; Rude v. Railroad, 93 Mo. 408; Nagel v. Railroad, 167 Mo. 98; Donner v. Railroad, 133 Mo.App. 527; Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92; Van DeVere v. Kansas City, 107 Mo. 83; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560; Stephenson v. Railroad, 68 Mo.App. 648; Thompson & Son v. Macon, 106 Mo.App. 92; Gates v. Railroad, 111 Mo. 34; Bailey v. Culver, 84 Mo. 531; Baker v. McDaniel, 178 Mo. 447; Foundry v. Railroad, 130 Mo.App. 104; Gaus & Sons v. Railroad, 113 Mo. 308; Elliott on Railroads (2 Ed.), sec. 991. (3) The appellant had full knowledge of the respondent's intention to build this railroad; it gave a note to induce it to build it; it knew that it was being constructed and that trains were being operated on it; it knew that large sums of money had been expended and were being expended in the improvement of Phelps avenue. And with full knowledge of all these facts appellant remained silent and it cannot now maintain this action. Even if appellant was entitled to have damages assessed and paid before the railroad was constructed and operated, which we deny, yet it has waived that right and cannot now make that an issue in this case. It had a full, complete and adequate remedy at law for all damages, if any, sustained by it. Elliott on Railroads (2 Ed.), sec. 1096; Smith v. Sedalia, 244 Mo. 123; Planet Co. v. Railroad, 115 Mo. 613; Sherlock v. Railroad, 142 Mo. 186; Provolt v. Railroad, 57 Mo. 256; New York v. Pine, 185 U.S. 93; Roberts v. Railroad, 158 U.S. 1; Williams v. Railroad, 153 Mo. 519; Kanaga v. Railroad, 76 Mo. 213; Snyder v. Railroad, 112 Mo. 536; Webster v. Railroad, 116 Mo. 114; Reinhart v. Railroad, 5 L. R. A. 185. (4) The defendant was not required to ascertain and pay appellant's alleged damages prior to the construction and operation of its railroad on Phelps avenue. Such damage, if any, is purely speculative and could not be determined before the road was constructed and operated. In this case the evidence fails to show any damage and on the trial defendant offered to prove that appellant's property had been increased in value as a result of the construction of this railroad, but was not permitted to do so on account of appellant's objection to the testimony. Art. 2, sec. 21, Constitution; Gaus & Sons v. Railroad, 113 Mo. 308; Nagel v. Railroad, 167 Mo. 89; Clements v. Insurance Co., 184 Mo. 46; Medley v. Berry, 143 Mo.App. 641; Smith v. Sedalia, 244 Mo. 124; Gates v. Railroad, 111 Mo. 33; Thompson & Son v. Macon, 106 Mo.App. 84; Provolt v. Railroad, 57 Mo. 262; Vanderburg v. Minneapolis, 6 L. R. A. (N. S.) 745; Arbens v. Railroad, 5 L. R. A. 377. (5) To grant the relief asked by appellant would entail upon the respondent a tremendous loss and would subject the general public to serious and lasting inconvenience and loss, while the benefit, if any, to be derived by the appellant, would be but trivial and insignificant, even if it were entitled to it. Under these circumstances courts of equity will not grant injunctive relief. Elliott on Railroads (2 Ed.), secs. 628, 629, 1096; Bailey v. Culver, 84 Mo. 531; Johnson v. Railroad, 227 Mo. 450; Boecker v. Railroad, 10 Mo.App. 453; Weigel v. Walsh, 45 Mo. 560; Smith v. Sedalia...
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