Richards v. Ferguson Implement Company
| Decision Date | 20 May 1907 |
| Citation | 102 S.W. 606,125 Mo.App. 428 |
| Parties | JOHN F. RICHARDS, Respondent, v. FERGUSON IMPLEMENT COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
AFFIRMED.
Judgment affirmed.
Harkless Crysler & Histed for appellant.
(1) A private individual cannot grant a license to a railroad to construct a track over his land and be permitted to charge shippers for the privilege of allowing cars to be transported over the track on his land. (2) Railroad companies may take land by grant, easement, license or condemnation or otherwise, but it must be taken and used solely and only for public purposes. R. S 1899, secs. 1035, 1054. (3) Railroad companies must give uniform rates and privileges to all parties in operating their railroads. R. S. 1899, secs. 1126 1127, 1128, 1129, 1130, 1133. (4) Railroad rails, ties, etc laid down upon land become fixtures, and the railroad's property, and become a part of the easement and right of the railroad company. Railroad v. Bradbury, 106 Mo.App. 456. (5) When Richards & Company gave the easement and privilege to the railroad to lay its track over its land, the road became as permanently dedicated to the public use as if the railroad had taken it by condemnation, and no private arrangement or contract between the railroad and Richards & Company can in any way, affect the right of the public to the use of the railroad track, nor can Richards & Company deprive the public of the right to use it as others use it by any contract with the railroad. If a railroad company cannot be permitted to discriminate against shippers, they cannot do it indirectly by tolling out to somebody over whose land their road runs the right to charge other shippers for passing over such party's land. Railroad v. Coal Co., 55 L. R. A. 601; Bedford v. Oman, 24 Ky. Law, 2274, 73 S.W. 1038; McGrew v. Railway Co., 177 Mo. 533.
Lathrop, Morrow, Fox & Moore for respondent.
(1) If the case of Railroad v. Bradbury, 106 Mo.App. 455, cited by appellant, has any application whatever to the issue in this case, it is an authority supporting respondent's judgment. (2) In this case, the Union Pacific never had any easement in respondent's ground and respondent owned the track himself. (3) Even if there had been an entry upon respondent's property without his consent, the doctrine of public interest could not be invoked to deprive him of the right to ejectment or trespass, Childs v. Railway, 117 Mo. 414. This decision is a complete answer to appellant's contention in regard to the doctrine of public interest. R. S. 1899, sec. 1264. Dickey v. Tennison, 27 Mo. 373; Seafield v. Bohue, 169 Mo. 537; In re Twenty-first Street, 96 S.W. 201, 205 (Mo.) ; Sherlock v. Railway, 142 Mo. 183.
Action on an account for rent begun before a justice of the peace. A jury was waived in the circuit court where the cause was taken on appeal and the trial resulted in a judgment in favor of plaintiff for the full amount prayed. There is no controversy over the facts and we are asked to reverse the judgment on the ground that they afford no cause of action in favor of plaintiff.
There are two items in the account filed, as follows:
For a number of years, plaintiff has been the owner of the lots described in the account. They are located on Union avenue to the east of Hickory street in Kansas City and are in the business district of the "West Bottoms." A public alley running east and west adjoins them on the south and the Union Pacific Railroad company has maintained a public switch therein during the whole period covered by our inquiry. In 1879, the railroad company, under an agreement with plaintiff, ran a spur from this switch to and across the south end of plaintiff's lots for the purpose of affording private switching facilities to a wholesale business establishment there maintained. The junction of the spur with the public switch was placed at a point some distance west of Hickory street, and it was necessary to traverse land owned by the Missouri Pacific Railway Company and also Hickory street in order to reach the west line of plaintiff's property. An arrangement was made by which a right of way was obtained over the private land and plaintiff procured the passage of a city ordinance giving him permission to lay the track across the street. The cost of the construction of the track to plaintiff's land was borne by the Union Pacific Railroad Company, but plaintiff paid for the track across his land.
Afterwards the owner of lot 5, which adjoins the land of plaintiff on the east, desired to have the spur extended across the rear end of his lot for the accommodation of a wholesale business conducted thereon, and it was so extended under an agreement by which he obligated himself to pay plaintiff a monthly rental of ten dollars for the right to have his freight transferred over plaintiff's land. Sometime after this, the owner of lot 6, which adjoins lot 5 on the east, obtained an extension of the track across the rear end of his lot, under an agreement made with plaintiff and the railroad company, and acquiesced in by the owner of lot 5, by the terms of which, he agreed to pay plaintiff a monthly rental of seven dollars, and the rental to the owner of lot 5, was then reduced to the same amount. After that defendant, the owner of lot 7, which adjoins lot 6 on the east, made a contract with plaintiff and also one with the railroad company for the extension of the line across the rear end of its lot, for the service of the wholesale business which it was operating thereon. Under the terms of the contract, defendant obligated itself to pay plaintiff a rental of seven dollars per month as long as the switch was maintained for its accommodation, and pursuant thereto, paid plaintiff the amount of the rental for a number of years and until the beginning of 1903. At the end of that year, it refused to continue the payment, and after ineffectual...
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