Planet Property & Financial Co. v. St. Louis, O. H. & C. Ry. Co.

• Decision Date: 16 May 1893
• Citation: 115 Mo. 613,22 S.W. 616
• Court: Missouri Supreme Court
• Parties: PLANET PROPERTY & FINANCIAL CO. v. ST. LOUIS, O. H. & C. RY. CO.

22 S.W. 616

115 Mo. 613

PLANET PROPERTY & FINANCIAL CO. v. ST. LOUIS, O. H. & C. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 16, 1893.

INJUNCTION — ADEQUATE REMEDY AT LAW — TRESPASS BY RAILROADS — ACQUIESCENCE.

1. Plaintiff company, claiming to own city property on both sides of a highway, and the fee in the latter, asked an injunction to restrain defendant railway company from operating its road through a cut under the highway, on the ground that the ordinance authorizing the construction of the road required that the highway crossing be on grade. Held, that the petition was bad on demurrer, as plaintiff had an adequate remedy at law.

2. Since plaintiff stood by and allowed such construction of the road without taking any action to prevent it, further than notifying defendant of its objection, it was not entitled to an injunction to restrain the operation of the road through such cut.

Appeal from St. Louis circuit court.

Injunction by the Planet Property & Financial Company against the St. Louis, Oak Hill & Carondelet Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

T. J. Rowe, for appellant. H. S. Priest and H. G. Herbel, for respondent.

BURGESS, J.

This is a proceeding by injunction instituted on September 23, 1890. The petition is substantially as follows: In the summer of 1886 the defendant, being desirous of constructing a railroad in the city of St. Louis, obtained permission from the municipal assembly of said city to cross certain streets intersected by its proposed route, as evidenced by the following ordinance approved June 15, 1886: "(13,657.) An ordinance authorizing the St. Louis, Oak Hill and Carondelet Railway Company to lay down and maintain railway tracks across and upon certain streets, avenues, roads, and public places in the city of St. Louis. Be it ordained by the municipal assembly of the city of St. Louis, as follows. Sec. 2. The course of the line of said railway shall be west of the Old Manchester road, crossing the same at or near the intersection of Cooper street; Arsenal street, east of Brannan avenue; Morgan Ford road, north of Pernord road; Gravois road, at or near the intersection of Bingham avenue, and Bates street, at or near the Glaise creek bridge. Both crossings of King's highway shall be over said road upon good and substantial viaducts, to be erected by said company at its own cost and expense, at a sufficient height — not less than 14 feet in the clear over the grade of said road — so as to prevent interference with the general traffic underneath. The crossings of Arsenal street, Morgan Ford road, and Loughborough avenue shall be underneath said highways, all of which shall be carried over the tracks of said railway upon good, substantial bridges, tunnels, or arches. The plans and specifications of such viaducts and bridges shall be submitted to and approved by the board of public improvements, and constructed under the supervision and to the satisfaction of the street commissioner, at the cost and expense of said railway company. Whenever the city shall declare, by ordinance, the necessity of bridging over or tunneling under any street on the line of this railroad, the company owning said railroad shall be obliged to pay one-half the cost of such structure and the whole cost of the grading necessary. Sec. 3. As soon as the said company shall have made the necessary surveys, and before it shall have finally adopted the lines and grades of its road, or be authorized to commence the construction of its line, or any part thereof, it shall submit a map and profile of such part of its proposed line or route to the board of public improvements, and any suggestions as to changes of such line or route, not consistent with the provisions of this ordinance, and of grades which shall be recommended by said board, shall, if not agreed to by said company, be submitted to the...