Railroad Co. v. State Highway Comm.
| Decision Date | 29 March 1929 |
| Docket Number | No. 27090.,27090. |
| Parties | CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY v. STATE HIGHWAY COMMISSION OF MISSOURI, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. — Hon. Samuel Wilcox, Judge.
REVERSED.
Edgar Shook and A.M. Meyer for appellant.
(1) The petition does not state facts sufficient to constitute a cause of action, because it fails to allege that a plan for protecting the track and the overhead crossing from high water had been submitted to and approved by the Public Service Commission, and for the further reason that it fails to allege that the matter of the division of costs of protecting the track and the overhead crossing from high water had been submitted to and passed upon by the Public Service Commission. Secs. 10458, 10459, 10526, R.S. 1919; Sec. 10459, Laws 1925, p. 322; Kirksville v. Hines, 285 Mo. 233; State ex rel. Terminal Co. v. Pub. Serv. Comm., 308 Mo. 359. (2) The circuit court had no jurisdiction of the subject-matter of the action, that jurisdiction resting in the Public Service Commission, subject to review by the courts in this case, only by appropriate proceeding originating in Cole County. Secs. 10458, 10459, 10522, R.S. 1919; authorities supra. The "manner of crossing" and "the apportionment of costs" are "exclusively" within the jurisdiction of the Public Service Commission. "The approaches are necessary parts of the crossing, without which the viaduct would not be a crossing; it would be a useless obstruction," and the Public Service Commission has exclusive authority to apportion the costs of constructing them. Chicago Ry. Co. v. Pub. Serv. Comm., 287 S.W. 620. Upon the same authority, and under the evidence introduced in this case, the Public Service Commission could and might reasonably have assessed the entire cost of additional drainage against the railroad company (l.c. 618). The Public Service Commission State ex rel. Term. Ry. Co. v. Pub. Serv. Comm., 308 Mo. 359. (3) The respondent having filed answer in the proceeding before the Public Service Commission, appeared and introduced evidence at the hearing there, and having failed to make any objection to the plans, and having permitted the appellant, without objection, to change its position to its detriment by proceeding with the construction of the overhead crossing according to the plans approved by the Public Service Commission, is estopped by its acts to assert that the drainage provided by the plans was insufficient. 32 C.J. 69, pars. 52 et seq.; Dalton v. Katalla Co., 4 Alaska, 410; Adams v. Realty Co., 154 Ala. 457. (4) The respondent having filed answer in the proceeding before the Public Service Commission, appeared and introduced evidence at the hearing there, and having failed to make any objection to the plans, is estopped by the order of the Public Service Commission to assert in this action, that those plans did not sufficiently provide for the drainage necessary and incident to the construction. Tremayne v. St. Louis, 6 S.W. (2d) 935; Railroad v. Commissioners, 63 Fla. 491; Sec. 10526, R.S. 1919; Chicago I. & L. v. Comm., 175 Ind. 630. (5) The plaintiff had an adequate remedy at law. Chicago Ry. Co. v. Commrs., 175 Ind. 630; State ex inf. v. Gas Co., 254 Mo. 515; Railroad v. Commrs., 63 Fla. 491; Stone v. Jefferson City, 293 S.W. 782; Secs. 10520-10526, R.S. 1919; Ry. Co. v. Pub. Serv. Comm., 287 S.W. 617. (6) Respondent was guilty of laches, and hence is not entitled to equitable relief. Versteeg v. Railroad, 250 Mo. 61; Lyons v. School Dist., 278 S.W. 741; 32 C.J. p. 69, par. 52 et seq.; p. 72, par. 56. (7) No authorized body can be enjoined from, or mulcted in damages for, pursuing a plan of construction authorized and ordered by the body which by law has been given that power, that is to say, for exercising a legislative function for the public good, or acting by legislative authority. Fritz v. Kansas City, 84 Mo. 632; Murtaugh v. St. Louis, 44 Mo. 479; Thompson v. Macon, 106 Mo. App. 84; Scott v. City of Marshall, 110 Mo. App. 178.
Luther Burns, Henry S. Conrad, L.E. Durham and Hale Houts for respondent.
(1) The question involved is a judicial one over which the Public Service Commission had and has no jurisdiction, and which was properly within the jurisdiction of the Circuit Court of Buchanan County. (a) It has always been the rule that an individual may complain of a nuisance created in the construction of a street or highway. McGrew v. Paving Co., 247 Mo. 563; Tremayne v. St. Louis, 6 S.W. (2d) 939. (b) Plaintiff is not complaining of damages incident to a proper construction. The complaint is of improper construction, to-wit, the creation of a nuisance, and the circuit court found that the construction was negligent and a nuisance created. Even before the present Constitution, an individual had a cause of action where he was specially injured by negligent construction of a street or highway or the creation of a nuisance in connection with the making of such improvement. Imler v. Springfield, 55 Mo. 119; Wegman v. Jefferson City, 61 Mo. 55; Werth v. Springfield, 78 Mo. 110; Hannibal v. Richards, 82 Mo. 336; Rychlicki v. St. Louis, 98 Mo. 501; Davoren v. Kansas City, 308 Mo. 513; Williams v. Beatty, 139 Mo. App. 167. (c) Also, a railroad, even independent of statute, may not create a nuisance through improper drainage on its line of railroad although the railroad was built under governmental authority. Harrelson v. Railroad, 151 Mo. 482; Edwards v. Ry. Co., 82 Mo. App. 96. (d) The fact that the State Highway Department created the nuisance in question by the construction of a public highway does not deprive the plaintiff of a remedy. Municipalities and public officials, acting under governmental authority, are liable to damages or may be enjoined for the creation of a public nuisance and required to abate it. Davoren v. Kansas City, 308 Mo. 513; State ex rel. Lamm v. Sedalia, 241 S.W. 656; Merchants Exchange v. Knott, 212 Mo. 647. (2) We do not understand that appellant is now contending that it cannot be sued in the circuit court provided the Public Service Commission has no jurisdiction. Nor is that contention now open in this State. This court in banc in State ex rel. State Highway v. Bates, 296 S.W. 418, has expressly held that by the Highway Commission Act it is suable and that in respect to any power or act of the Commission which may be deemed governmental there is express consent of the State that it may be sued. (3) Even in states where the statutes do not expressly authorize actions against highway bodies, it is still held that such bodies may be enjoined from maintaining a nuisance, such as that in the case at bar: Wharton v. Barber, 221 S.W. (Ky.) 499; Smith v. Eaton Township, 101 N.W. (Mich.) 661; Cubit v. Obett, 16 N.W. (Mich.) 679; Breen v. Hyde, 89 N.W. (Mich.) 732; Slack v. Lawrence Township, 19 Atl. (N.J.) 661; Whipple v. Village of Fair Haven, 21 Atl. (Vt.) 533; Jewett v. Sweet, 52 N.E. (Ill.) 962; Estes v. Anderson, 213 N.W. (Ia.) 566; Murphy v. Fairmount Township, 89 Kan. 760; State Highway Comm. v. Noch, 120 S.E. (Va.) 869. (4) Assuming for the sake of argument that par. 2, sec. 10459, of the Public Service Commission Act purports to give the Public Service Commission exclusive jurisdiction over the question involved in the case at bar, the act cannot be given such effect. The question being a judicial one and one within the jurisdiction of the circuit courts of the State, the Legislature was without power to withdraw it from the jurisdiction of the courts and place it within the jurisdiction of the Public Service Commission. The Public Service Commission is not a court and cannot be made one. Mo. Constitution, Art. 3, and Art. 6, secs. 28 and 31; Lusk v. Atkinson, 268 Mo. 116; State ex rel. Railroad v. Pub. Serv. Comm., 303 Mo. 218. In all of those cases this court has construed the act as not purporting to give the Public Service Commission jurisdiction over any matter of private right, over any right of damages or injury incident to public work or condemnation, and as not even authorizing the Commission to take such rights into consideration in determining the matter of division of cost, which is within the jurisdiction of the Commission.
This suit was brought by the railway company in the Circuit Court of Buchanan County to restrain the appellant State Highway Commission, and Pittsburg-Des Moines Steel Company, a co-partnership, from maintaining an alleged nuisance, and for abatement of such nuisance, and also for damages for injuries to respondent's property, alleged to have been caused by the construction of an overhead crossing of the state highway known as Route 8, over the tracks of the railway company.
The trial court granted the injunctive relief prayed for, with judgment for $1,000 as damages, against the Highway Commission, and dismissed the bill as to the other defendant, the Construction Company. The ground of the complaint is that insufficient drainage was provided, in the construction of the viaduct, thereby obstructing the flow of water at that point, rendering the track unsafe, creating a nuisance, and causing damage to the railway property.
On September 25, 1924, the Highway Commission made application to the Public Service Commission, for an order for the construction of a viaduct, or overhead crossing of the highway, over defendant's tracks at a point designated, and in accordance with plans submitted with the application. Upon a hearing, the Public Service Commission made its order for the construction of the viaduct in accordance with the plans submitted; ordered that the work of construction of the viaduct and its approaches...
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