Oliver v. Snider

• Citation: 75 S.W. 591,176 Mo. 63
• Parties: OLIVER v. SNIDER, Judge, et al.
• Decision Date: 15 June 1903
• Court: Missouri Supreme Court

75 S.W. 591

176 Mo. 63

OLIVER v. SNIDER, Judge, et al.

Supreme Court of Missouri.

June 15, 1903.

COURTS—CAPE GIRARDEAU COMMON PLEAS— EQUITABLE JURISDICTION—ISSUANCE OF INJUNCTION—POWERS OF JUDGE.

1. Under section 18 of the charter of the Cape Girardeau court of common pleas (Rev. St. 1899, p. 2582), giving said court "concurrent original jurisdiction in all civil actions at law" with the circuit court of the county, said common pleas court has equitable jurisdiction.

2. The charter of the Cape Girardeau court of common pleas (Rev. St. 1899, p. 2582) § 18, gives said court concurrent original jurisdiction in all civil actions with the circuit court; and section 30 (page 2583) provides that "the judge shall have like power in relation to suits therein as the circuit court judge has in like cases, and that he may grant writs of injunction returnable to the circuit court. Held that, while such "court" had equitable jurisdiction, the powers of the "judge" must be strictly limited to the special statute granting them, and injunctions issued by him in vacation must be "returnable to the circuit court."

3. This construction is not objectionable on the ground that irreparable injury may ensue, as a writ returnable by him to the circuit court has all the efficacy it would have if returnable to the common pleas.

4. Rev. St. 1899, § 4161, providing that, when the term "circuit court" is used in any law general to the whole state, it shall include "courts of the common pleas," unless such construction would be inconsistent with the intent of such law, or of some law specially applicable to courts of common pleas, does not apply to the provisions of Act 1851 and amendments (Rev. St. 1899, p. 2579), granting power to the judge of the Cape Girardeau court of common pleas to issue injunctions returnable to the "circuit court," the act being special.

In banc. Original proceedings by John F. Oliver for a writ of prohibition against John A. Snider, judge of the Cape Girardeau court of common pleas and another. Writ granted.

Wilson Cramer and R. B. Oliver, for plaintiff. L. F. Parker and Frank E. Burroughs, for defendants.

GANTT, J.

This is an original proceeding in this court to obtain a writ of prohibition against the defendant Judge John A. Snider, the judge of the Cape Girardeau court of common pleas, and the St. Louis, Memphis & Southeastern Railway Company, from further proceeding and asserting jurisdiction to hear and determine a certain suit by the said railway company against the plaintiff, John F. Oliver, wherein a temporary writ of injunction was issued by Judge Snider in vacation of his said court, restraining the plaintiff, Oliver, from entering upon the right of way of said railway company, and cutting down some of the telegraph poles, and from obstructing and preventing said railway company from grading its road, and from interfering with its subcontractors, agents, and servants in carrying on its work of constructing its railroad over certain lands which it alleged it had duly condemned and appropriated for a right of way. The petition alleges that the plaintiff is the owner of, and for a long time has been in the peaceable possession of, the following real estate in the county of Cape Girardeau, to wit, the northwest fractional quarter of section 28, the northeast fractional quarter of section 29, and the southeast fractional quarter of section 20, in township 33, range 14; that on the 23d day of January, 1902, the said railway company (a railroad company duly organized under the laws of this state, and engaged in the construction of a railroad in and through said county) presented to the said Snider, as judge, aforesaid, of said common pleas court, its petition for the condemnation of a certain portion of said real estate. The said petition for condemnation is then set out at length, wherein, in brief, it was alleged the said company needed and sought to condemn for its said railroad certain strips of land, 100 feet in width, in a general northerly direction, and specifically describing the lands and the names of the several owners, and, among others, 100 feet in a general northerly and southerly direction over and through and upon the northwest fractional quarter of section 28, the northwest fractional quarter of section 29, and the southeast fractional quarter of section 20, in township 33, range 14, and that the same was owned by J. Frank Oliver, upon which the county of Cape Girardeau held a mortgage for $985; that the said 100 feet in width in each of the parcels of ground specified was 50 feet on each side of the center line of said railroad, as the same was then located on the ground by stakes driven in the ground along said center line, and as indicated on a plat thereof therewith filed, and made a part of said petition, and that the owners of said parcels and said company could not agree upon the proper compensation to be paid for said strips, or any interest therein, which it sought to acquire, or the damages to the remainder of the tracts by reason of such acquisition, and prayed for the appointment of commissioners to ascertain the damages which said owners might sustain, as a just compensation; that thereupon it was ordered that a hearing of said petition be had before said judge on the 14th day of February, 1902, at the courthouse in Cape Girardeau, and that plaintiff was duly summoned to appear on that day at said place; that upon the hearing the matter of the appointment of commissioners was taken under advisement until February 20, 1902, at which time certain commissioners were appointed to assess said damages, and directed to view and assess the same and make return thereof, and afterwards qualified and undertook to discharge their duties as such, and file their report in the office of the clerk of said court. "And plaintiff states that after the appointment of said commissioners the said railroad company abandoned its line of railroad across plaintiff's lands as set out and described in its said petition for condemnation, and has surveyed and located an entirely different line instead thereof, and has wrongfully and without authority of law undertaken to occupy and take possession, for the purposes of its railroad, of an entirely other and different strip of plaintiff's lands than that described in its petition for condemnation aforesaid; that plaintiff, being in the lawful possession of said land, undertook by lawful means to protect his property from the unlawful acts and encroachments of said railroad company; that on 23d day of December, 1902, said railroad company, for the purpose of harassing, annoying, and intimidating this plaintiff, and of taking and obtaining possession of his said property, wrongfully and without due process of law filed in the office of the clerk of the Cape Girardeau court of common pleas its petition for injunction against plaintiff, as follows:

"`In the Cape Girardeau Court of Common Pleas, County of Cape Girardeau, State of Missouri. January Term, 1903. St. Louis, Memphis & Southeastern Railroad Company v. John Frank Oliver. Petition for Injunction. The petitioner herein, the St. Louis, Memphis & Southeastern Railroad Company, respectfully presents that it is a corporation duly incorporated under the laws of the state of Missouri, and has full power and authority to construct, operate, and maintain a railroad, and incidentals thereto, from the city of St. Louis, through the city of Cape Girardeau, in the state of Missouri, to the town of Luxora, in the state of Arkansas. That it has begun the construction of its railroad, and has nearly completed the entire grading of the same, excepting some few small places. That it owns a right of way one hundred feet (100) wide through the lands of the defendant, John Frank Oliver, being the northwest fractional quarter of section 28, and the northeast fractional quarter of section 29, and the southeast fractional quarter of section 20, township 33, range 14, in Cape Girardeau county, Missouri. An accurate description of said right of way is indicated on the plat of same herewith filed and made a part thereof, the center line of which one hundred feet crosses the north line of said Oliver's property at a point 1,992.5 feet from the northeast corner of the lands of D. Moore, and the southeast corner of the lands of S. A. Moss or George Peterson, and crosses the southerly line of said Oliver's property at a point 1,338.5 feet easterly from the quarter-section corner common to sections 28 and 29 in said township 33, range 14, in said county. That petitioner has completed grading along part of said right of way above described, and is now seeking to complete the grading of the road along the balance of said right of way, to lay track thereon, and telegraph poles, and string its wire for its use. That the petitioner has also placed upon said right of way telegraph poles of the usual dimensions, for the purpose of stringing its wires to be used in operation of its trains. That the defendant, John Frank Oliver, wrongfully and without cause and without right, has entered upon said right of way, and has cut down some of the telegraph poles and thrown them in the river, and has, with force and arms, obstructed and prevented the petitioner, by its contractors, agents, and servants, from further grading upon part of the right of way aforesaid, and from further erecting poles and stringing wires thereon. That said Oliver has threatened, with force and arms, to shoot and kill the petitioner's subcontractors, agents, and servants. That the petitioner has no adequate remedy at law, and therefore prays that the defendant, John Frank Oliver, his agents, servants, and attorneys, be enjoined and restrained from cutting down the telegraph poles of the plaintiff, and from forcibly obstructing the petitioner in the construction of its grading, track-laying, pole-setting, wire-stringing, and the completion of its railroad and...