Seibel-Suessdorf C. & I. Mfg. Co. v. Manufacturers' Ry. Co.

• Decision Date: 19 July 1910
• Citation: 130 S.W. 288,230 Mo. 59
• Court: Missouri Supreme Court
• Parties: SEIBEL-SUESSDORF COPPER & IRON MFG. CO. et al. v. MANUFACTURERS' RY. CO.

130 S.W. 288

230 Mo. 59

SEIBEL-SUESSDORF COPPER & IRON MFG. CO. et al. v. MANUFACTURERS' RY. CO.

Supreme Court of Missouri. Division No. 2.

July 19, 1910.

1. TRIAL (§ 45) — RECEPTION OF EVIDENCE — OFFER OF PROOF.

An offer of evidence tending to establish the invalidity of a city ordinance authorizing a railroad company to construct tracks on a street was a mere general proposition which the court was not required to consider.

2. TRIAL (§ 62) — RECEPTION OF EVIDENCE — REBUTTAL — "REBUTTING EVIDENCE."

Since rebutting evidence is that given by a party to explain, repel, counteract, or disprove facts given in evidence by the other side, more particularly applied to the evidence given by plaintiff to explain or repel evidence given

by the defendant, defendant in a suit to restrain it from constructing certain railroad tracks in a street, not having offered in evidence the ordinance granting it the right to do so, plaintiff was not entitled to introduce evidence in rebuttal showing that the ordinance was invalid.

3. TRIAL (§ 63) — RECEPTION OF EVIDENCE — REBUTTAL.

Where plaintiff in a suit to restrain defendant railroad company from laying tracks in a street was permitted to offer evidence as a part of its main case showing that the ordinance under which defendant was acting was invalid, plaintiff was not entitled to offer additional cumulative and confirmatory evidence for the same purpose in rebuttal.

4. PROPERTY (§ 9) — BEST EVIDENCE — OWNERSHIP OF LAND — RECORDS — ASSESSMENT PLATS.

Rev. St. 1899, § 9169 (Ann. St. 1906, p. 4221), requires the president of the board of assessors of St. Louis to cause plats to be prepared covering all tracts and lots of land in the city, showing the names of the persons to whom each tract or lot was assessed for each year, and section 9165 (page 4220) indicates that the object of requiring such plats is to enable the officials to ascertain what lands are taxable. Held, that tracings made of such assessment plats for the year 1904 indicating plaintiff's ownership of certain property in question on June 1st of that year were inadmissible to show ownership of such property in the succeeding year.

5. PROPERTY (§ 9) — RECORDS — OWNERSHIP OF LAND — ASSESSOR'S BOOKS.

Assessors' books or plats are inadmissible as evidence of title or ownership of the land assessed.

6. MUNICIPAL CORPORATIONS (§ 62) — ORDINANCES — DELEGATION OF AUTHORITY.

A city ordinance authorizing a railroad company to maintain switch tracks on and across certain streets at such places as it deemed necessary in the operation of tracks laid on a street in question, provided that in the opinion of the board of public improvements the construction of such tracks was practicable, was not objectionable as a delegation of legislative power or authority to the board of public improvements.

7. RAILROADS (§ 75) — EMINENT DOMAIN (§ 119) — STREETS — SERVITUDE — COMMERCIAL RAILROADS.

Operation of a commercial railroad on a city street under authority granted by a city council does not constitute a new servitude or an unlawful use of the street.

8. RAILROADS (§ 75) — OPERATION IN STREETS — MONOPOLY.

A street, for a distance of 2,275 feet, was 38 feet 6 inches wide between building lines, with sidewalks 6 feet 6 inches on each side, leaving a roadway between the curbs of 25 feet 6 inches, and through the balance of the distance it was proposed to construct thereon a commercial railroad, the street was 60 feet wide. The construction of such railroad would not prevent traffic on the street nor deprive plaintiffs, who were adjoining property owners, of the use of their property. Held, that an ordinance authorizing the railroad company to construct a single track railroad on the street, with proper turnout switches, etc., was not objectionable as granting to the railroad a monopoly of the street.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Suit by the Seibel-Suessdorf Copper & Iron Manufacturing Company and others against the Manufacturers' Railway Company to restrain it from constructing a railway track on Second street in the city of St. Louis. Judgment for defendant, and plaintiffs appeal. Affirmed.

This is a proceeding in equity to enjoin the defendant railway company from laying down a single track of standard gauge railway on Second street, in the city of St. Louis, from Poplar street, on the north, to Potomac street, on the south, a distance of about 2½ miles. From Poplar street, southwardly, to Convent street, a distance of 2,275 feet, Second street has a width, between building lines, of 38 feet 6 inches with sidewalks on each side of 6 feet 6 inches, leaving a roadway between curbs of 25 feet 6 inches. From Convent street to Potomac street, the southern terminus of the proposed line, Second street has a width of 60 feet. Plaintiffs are abutting property owners on Second street, along the proposed route. The properties of plaintiffs, the Seibel-Suessdorf Copper & Iron Manufacturing Company, Frederick Suessdorf, and Charlotte Riechmann, front on the narrow portion of Second street, where the width between curbs is about 25½ feet. The property of the Seibel-Suessdorf Copper & Iron Manufacturing Company is on the northeast corner of Second and Lombard streets, with access to both of said streets, has a frontage of 84 feet, and is improved with a three-story factory building worth $20,000. Immediately north of and adjoining the property of said company is the property of Frederick Suessdorf, the same consisting of a lot fronting 26 feet and 6 inches on Second street, and improved with a three-story building, the front part of the building being used as a saloon and boarding house, while the rear half is used in connection with the business of the plaintiff manufacturing company, of which company plaintiff Frederick Suessdorf is secretary. The improvements on this property are worth about $4,500. The property of plaintiff Charlotte Riechmann has a frontage of 56 feet on the east side of Second street, between Lombard street and Chouteau avenue and runs through to Risley street, which abuts it on the east. This property is improved with two-story brick buildings, used as a saloon, boarding house, and residence, all valued at $5,000. All the other plaintiffs are interested, as owners, in four different lots fronting on Second street, south of Convent street, where the street has a width of 60 feet. The defendant Manufacturers' Railway Company is a railway corporation, organized under the laws of Missouri, and was, by an ordinance passed by the municipal assembly of the city of St. Louis, and approved April 8, 1905, granted permission to construct, maintain, and operate a single track railway in certain streets, including Second street, between the points above mentioned. Section 3 of the ordinance also authorizes said company to construct, maintain, and operate switch tracks at such places as it may deem necessary in the operation of the track authorized by the ordinance, "provided that in the opinion of the board of public improvements the construction of such switch tracks is practicable."

This bill was filed a few days after the approval of the ordinance. It charges, in effect, that plaintiffs are owners of real estate along the line of, and abutting on, Second street, and fronting the line of railroad track above referred to; and, after stating the width of Second street and the general character of the improvements thereon, charges that defendant is threatening to, and will, unless restrained by order of the court, "build and operate a standard gauge railroad, with a track 4 feet 8 inches between rails, for the purpose of carrying freight in cars propelled by steam locomotives, as a common carrier, from and commencing at a point in the center line of the track of the St. Louis, Iron Mountain & Southern Railway on Poplar street," to the southern terminal point above referred to, and that defendant "is threatening, and about to, and will, enter upon said Second street, and will tear up the pavement thereon all along the line of its proposed track, and thus stop all traffic by vehicles on said street while constructing said railway. And that defendant is threatening to, and will, unless restrained by the order of this court, stand its cars on Second street, and erect and maintain gates at all street crossings on both sides of said track, and will lower said gates at the approach of all trains." Plaintiffs make no reference in the bill to the ordinance passed by the Municipal Assembly authorizing the defendant to construct, maintain, and operate said single track railway and switch tracks, but simply say "that defendant has no right or lawful authority to do any of the acts herein set forth." The bill further charges "that, in the event said railroad shall be constructed and operated as hereinbefore set forth, the plaintiffs will suffer great, immediate, permanent, and irreparable injury and damage, and that the traffic over and along said Second street will be greatly and unreasonably delayed and hindered, and that by reason of the frequent passing and stopping of trains and locomotives, and by reason of the standing of cars on said track, and the lack of space between said track and the sidewalks on said street, wagons used for the carriage of goods and merchandise will not be able to pass or go along Second street, and no ordinary wheeled vehicle will be able safely to pass between the locomotive or train or cars of defendant and the sidewalks; that by the erection and maintenance and use of gates threatened as aforesaid, travel and traffic will be cut off between Second street and other highways and thoroughfares, and the use of said Second street by the owners of the property thereon will be destroyed on a great part of said street, as well as the use thereof by the public for the purpose for which it was originally condemned or dedicated. And said Second street as a highway will be...