Moore Mfg. Co. v. Springfield-Southwestern Ry. Co.

• Decision Date: 17 February 1914
• Citation: 256 Mo. 167,165 S.W. 305
• Parties: MOORE MFG. CO. v. SPRINGFIELD-SOUTHWESTERN RY. CO.
• Court: Missouri Supreme Court

165 S.W. 305

256 Mo. 167

MOORE MFG. CO. v. SPRINGFIELD-SOUTHWESTERN RY. CO.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

Rehearing Denied March 24, 1914.

1. EMINENT DOMAIN (§ 119) — MUNICIPAL CORPORATIONS (§§ 680, 681) — RAILROADS — CONSTRUCTION ON STREET — SERVITUDE.

It is not unlawful for a city to authorize the construction and operation of a steam railroad on a public street, and such use is not a new servitude.

2. MUNICIPAL CORPORATIONS (§ 671) — USE OF STREET BY RAILROAD — INJUNCTION — EVIDENCE.

In a suit to enjoin the use of a public street by a steam railroad, evidence held insufficient to warrant an injunction on the ground that it constituted an impairment of plaintiff's rights in the street.

3. MUNICIPAL CORPORATIONS (§ 671) — USE OF STREET BY RAILROAD — REMEDY — LACHES.

Where plaintiff, for over three years, acquiesced in the use of a portion of the street by the defendant railroad company, having knowledge that it was entitled to complete its line along the street, his acquiescence in the construction and operation of the line constituted laches barring him from subsequent objections.

Appeal from Circuit Court, Barton County; B. J. Thurman, Judge.

Action by the Moore Manufacturing Company against the Springfield-Southwestern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John P. McCammon, of Springfield, for appellant. R. T. Railey, of St. Louis, and Barbour & McDavid, of Springfield, for respondent.

WALKER, P. J.

Plaintiff, a corporation, engaged in manufacturing in Springfield, Mo., petitioned for a mandatory injunction in the circuit court of Green county to compel defendant, a railway corporation, to remove its tracks, switches, and crossovers from Phelps avenue in said city, opposite plaintiff's property, and that it be restrained from connecting its track thereon, and perpetually enjoined from thereafter constructing and maintaining said superstructures on said avenue, and from running its trains, engines, and cars thereon. The grounds are that such use and occupation of said avenue by defendant prevent plaintiff from enjoying free ingress to and egress from its building located on the south side of said avenue at its intersection with Washington street.

A temporary injunction was denied in the circuit court of Green county, whereupon plaintiff took a change of venue to the circuit court of Barton county. A trial upon the merits was there had, resulting in a finding for the defendant and an appeal therefrom by plaintiff to this court.

Phelps avenue is 50 feet wide. Long prior to the erection of plaintiff's building thereon, the St. Louis & San Francisco Railroad Company, for brevity called the "Frisco," had constructed, used, and still maintains and uses a railway track on said avenue, located 18 or 20 feet from plaintiff's building. In addition, the said railroad company many years ago constructed and now maintains and uses another track, which crosses Phelps avenue at its intersection with Washington street diagonally across said streets from plaintiff's building. This is the Frisco's main line, on which it runs its passenger trains between Springfield and St. Louis. Also for many years plaintiff has maintained and now uses a spur or side track from the Frisco track running along said avenue into plaintiff's building to facilitate the handling of its shipments.

Of the proximity and use of none of these tracks does the plaintiff complain, but of defendant's track located on the north side of said avenue about 35 feet from plaintiff's building. This track of defendant was constructed prior to the erection of plaintiff's building under the authority of ordinances adopted by the city of Springfield, and has since been maintained and used by defendant for the transfer of freight cars, except a break in said track of about 30 feet, which has heretofore not been completed, immediately north of plaintiff's building. This track is used by defendant for the transfer of freight cars, when the Frisco is not using its adjacent tracks along said avenue. The space of 18 or 20 feet between plaintiff's building and the Frisco tracks is much below the level of the grade established by the city, except where a passageway over same has been made by plaintiff opposite the entrance to its building; the testimony not showing why this side of the avenue has not been improved.

All of the tracks in question are standard gauge, and there is therefore a space of 4½ feet between the rails of each particular track. Between the inside rails of the defendant's and the Frisco tracks there is a space of 8 feet, and the north rail of defendant's track is about 15 feet from the north line of said avenue. The space, therefore, unoccupied by tracks on the avenue opposite plaintiff's building is, on the north side, 15 feet wide, and, on the south side, 18 or 20 feet wide.

Since defendant constructed its track on said avenue, it has at an expense of several thousand dollars, built a retaining wall along the north side of same, and has filled and macadamized it, bringing its level up to the grade established thereon by the city. The present physical use of said avenue has existed for more than three years before the commencement of this suit. There is a conflict of testimony as to the extent to which the avenue is used by the general public; plaintiff's officers and employés testifying that the tracks thereon and their frequent use prevent travel, while many disinterested witnesses testify not only as to the frequency of the use of said avenue as a highway, but as to its increased use since improved and brought up to the grade.

Plaintiff's building was erected about two and one half years ago. The tracks were all on the avenue, and used for like purposes as at present when the building was...