Mullins v. Metropolitan Street Railway Co.
| Decision Date | 07 October 1907 |
| Citation | 104 S.W. 890,126 Mo.App. 507 |
| Parties | W. C. MULLINS, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
AFFIRMED.
Judgment affirmed.
Fyke & Snider for appellant.
(1) The court erred in giving defendant's instruction numbered 3. It is a comment upon the testimony and singles out a certain fact and tells the jury that fact alone will not entitle plaintiff to recover. (2) Instruction numbered 4 given for defendant is erroneous for the same reasons. Said instructions are erroneous for the further reason that defendant did not have the absolute right to place said tracks there so as to obstruct plaintiff, without regard to the necessity for so doing, and without regard to the reasonableness or unreasonableness of the use by defendant of its property. (3) Instruction numbered 5 given for defendant is erroneous. The grant of the right of way for the sewer carried with it by implication at least every thing necessary to render the easement capable of enjoyment to the full extent. Goddard's Law of Easements, p. 109; Fitzpatrick v. Mik., 24 Mo.App. 435; Prescott v White, 21 Pick. (Mass.) 341; Prescott v. Williams, 5 Metc. (Mass.) 435; Richardson v. Paul, 15 Gray (Mass.) 387; Snyder v. Warford, 11 Mo. 513.
John H Lucas, Charles A. Loomis and Ben F. White for respondent.
(1) Plaintiff's contention that defendant's instruction numbered 3 is a comment on the evidence and for that reason erroneous, is without substantial merit. (2) The same remarks will apply to so much of plaintiff's second assignment as has reference to its being a comment on the evidence. (3) It is not claimed that the defendant had any right to needlessly or purposely put obstacles in the way of plaintiff, but that it did have the right to protect its own property. (4) Even if it were conceded that these instructions, as an abstract proposition of law, declare too broadly the rights of defendant (which is not conceded), even then the plaintiff is not injured. (5) When, upon a view of the whole record, it is clearly manifest that the judgment is for the right party, it will not be reversed, although errors may have been committed. Bassett v. Glover, 31 Mo.App. 150; Nelson v. Foster, 66 Mo. 381; Fairbanks v Long, 91 Mo. 628; Fitzgerald v. Barker, 96 Mo. 661; Bushey v. Glenn, 107 Mo. 331; Henry v. Railroad, 113 Mo. 526; Burns v. Liberty, 131 Mo. 372; State v. Jennings, 134 Mo. 281.
--Plaintiff, who built a sewer for Kansas City, alleges in his petition that defendant unlawfully obstructed him while he was engaged in the prosecution of the work and thereby damaged him in the sum of fifteen hundred dollars, for which he prays judgment. A trial before a jury resulted in a judgment for defendant and plaintiff appealed. The errors assigned relate to the instructions given by the court, it being the contention of plaintiff that the law applicable to the facts of the case was inaccurately and prejudicially declared in the instructions given at the instance of defendant.
In 1896, the owners of a tract of land which adjoins the right of way of the Kansas City Belt Railway executed and delivered to the city a deed by the terms of which they conveyed for a nominal consideration "the perpetual right of way for a sewer over, along and through" the south ten feet of the tract. The length of the right of way thus conveyed is 683.14 feet. The deed contains the following covenants:
In April, 1901, defendant, a street railway company, acquired by deed the fee simple title to the property subject to the right of way and, in the summer of that year, began the construction of large car barns thereon. The buildings were placed on the north side of the land, about sixty feet north of the north line of the sewer right of way. Defendant graded the whole tract to the line of the Belt Railway preparatory to the construction of the buildings and of switch tracks for use in switching cars to and from the barn. At the instance of defendant, the Belt Railway (a steam railroad) laid a switch track from its line across the sewer right of way and on to the land of defendant, for the convenient handling of cars and material and other freight for the use of defendant on the premises. When the car barns were nearing completion, defendant began the construction of its switch tracks. It laid the main track east and west immediately north of the sewer right of way and parallel thereto and from it ran some fifteen tracks north into the barn. During the progress of the work, defendant built a substantial fence on the line between the sewer right of way, and that of the Belt Railway and also set some six or seven iron trolley poles at regular intervals along the center of the sewer right of way, but about the time work was begun on the excavation for the sewer, took up these poles and set them immediately north of the fence. The poles were intended to support the power wire necessary to the operation of cars on the main switch track we have described.
In October, 1901, plaintiff entered into a legal contract with Kansas City by the terms of which he undertook to construct a sewer about fifteen thousand feet in length, the course of which lay over the right of way mentioned. The sewer was to be circular in form, constructed of vitrified brick and, where it passed over defendant's land, was to be five feet ten inches in interior diameter. It required the excavation of a trench about seven and one-half feet wide and twelve feet deep.
In February, 1902, plaintiff hauled brick to be used in the work and piled them on the land of defendant in a line about ten feet north of the sewer right of way. At that time the switch tracks had not been built, but the beginning of work on the sewer was delayed several months by a cause we do not deem it important to state and, before it was begun, defendant found it necessary to build its main switch track and as the brick were in the way, removed them from its land to the right of way. It is claimed by plaintiff that the brick (over seventy thousand in number) were recklessly thrown by defendant's employees instead of being piled carefully and then were covered with dirt thrown from the excavation made for the laying of the track. The removal of the brick is admitted by defendant's witnesses who deny they were roughly handled, covered with dirt, or in any wise injured.
After plaintiff began to dig the trench which, of necessity, was so close to the line of the iron trolley poles described as to endanger their stability, defendant, to support the poles, used braces consisting of heavy wooden beams laid across the right of way about one foot below the surface and anchored to supports on defendant's land. It is claimed by plaintiff that the beams constituted an obstruction which prevented the use of teams and scrapers in excavating and necessitated the shoveling of the earth and its removal by wheelbarrows. It is also claimed that plaintiff was put to additional expense from the fact that, as no space was left on defendant's land for piling the brick or for ingress and egress of workmen and teams, the entire work had to be prosecuted in the narrow space afforded by the right of way. Thus hampered, plaintiff built the sewer in sections, i. e., he excavated the trench from one end of the right of way, a distance of twenty-five or thirty feet, wheeled out the shoveled earth which could not be thrown to the sides and then built the sewer in the trench, after which, he excavated for another section, using the earth taken therefrom to fill over the brick work in the first, and so on, until the sewer was completed.
Relative to the obstruction to the convenient and economical doing of the work interposed by the supports to the trolley poles, it was shown by defendant that the presence of the switch track laid by the...
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City of Moberly v. Lotter
... ... to-wit: "thence west on the center line of Logan street ... to the east line of tract No. 96, thence north on the east ... line ... with the right to lay and repair the sewer. Mullins v ... Metropolitan Co., 126 Mo.App. 507; 10 Am. & Eng. Ency ... Law (2 ... ...