Sherlock v. Kansas City Belt-Ry. Co.

• Decision Date: 22 October 1897
• Citation: 43 S.W. 629,142 Mo. 172
• Parties: SHERLOCK et al. v. KANSAS CITY BELT-RY. CO.
• Court: Missouri Supreme Court

43 S.W. 629

142 Mo. 172

SHERLOCK et al. v. KANSAS CITY BELT-RY. CO.

Supreme Court of Missouri, Division No. 2.

October 22, 1897.

RAILROADS — PUBLIC USE — FRANCHISE — MUNICIPAL CORPORATION — POWER TO GRANT — INJUNCTION — JURISDICTION.

1. A switch track, constructed and operated along an alley, by authority of the city, is for a public use.

2. A municipal corporation has no power to grant the use of an alley to a railroad company to lay its tracks therein, if the ordinary and reasonable effect of such a grant will be to prevent or unreasonably impede the passage of other vehicles belonging to abutting owners or other

members of the public desiring to use such alley.

3. Where a railroad company has constructed a track along an alley, so that the operation of cars thereon will obstruct it, a court of equity has jurisdiction to enjoin the company from so using its tracks, although no injury has as yet been done.

4. Where the construction and operation by a railroad of a track would prove a continuous damage to property owners, no adequate remedy at law can be had, and a court of equity has jurisdiction to grant an injunction.

Appeal from circuit court, Jackson county; Edward L. Scarritt, Judge.

Bill by Ann Sherlock and others against the Kansas City Belt-Railway Company to enjoin the building and operating of a track along a public alley. Injunction granted, and defendant appeals. Affirmed.

Pratt, Dana & Black, for appellant. Kenneth McC. De Weese, for respondents.

GANTT, P. J.

This is an appeal from a decree of the circuit court of Jackson county perpetually enjoining the defendant, a steam-railroad company organized under the laws of this state, from constructing its track, and operating its engines and cars, along a public alley from Seventeenth to Eighteenth streets, and between Walnut street and Grand avenue, in Kansas City, Mo. The plaintiffs are the owners of lot 367, in block 28, in McGee's addition in Kansas City. Said lot fronts on the west side of Grand avenue, with a width thereon of 49½ feet, and run westwardly 115.6 feet to said alley. Said alley is 16½ feet wide, is a public thoroughfare dedicated as an alley when the addition was platted, and extends north and south through several blocks, ending at the south at defendant's yards, and at the north end between Fifteenth and Sixteenth streets. At the commencement of this suit plaintiffs were the owners of two livery and sale stables on their said lots, and said stables abutted on said alley; and said alley was used by the lessee in removing manure from the rear of the stables. Some time in the year 1891 the common council of Kansas City by ordinance granted the defendant company the right to construct, maintain, and operate a switch track north and south along said alley, through blocks 18, 23, and 28 of McGee's addition, from the south line of Eighteenth street to the north terminus of said alley, and to cross Sixteenth, Seventeenth, and Eighteenth streets with said tracks; and in 1894, by another ordinance, granted the right to lay a side track not less than 12 nor more than 13 feet west of the center of said switch track. In October, 1894, under and by virtue of these ordinances, the defendant began digging out and grading said alley in the rear of plaintiff's lot to bring it to the grade established in 1877, previous to the erection of plaintiff's building. This grading lowered the surface of the alley from two to five feet. Defendant also began to construct a standardgauge railroad track in said alley, and had hauled its material on the ground for that purpose. The original application for injunction in this case was filed November 3, 1894. A restraining order was granted, and upon November 21st the amended petition was filed upon which the cause was heard. The temporary restraining order was revoked. The petition contains averments of the ownership of the lot in question, the incorporation of the railroad defendant, the chartering of Kansas City, the nature and relative situation of the adjacent streets and alleys, as already stated, and then charges that "afterwards, and some time on or about the ____ day of October, 1894, or some time shortly thereafter, said defendant entered into and upon said alley named, running north and south through said block twenty-eight (28) from Seventeenth street to Eighteenth street, as aforesaid, and where said lot three hundred and sixty-seven (367) adjoins or abuts upon said alley, and dug out and graded down and removed the earth and stone from said alley where plaintiffs' said lot abuts thereon to the depth of five (5) or six (6) feet, and are now constructing, and intend to construct, in said alley, a railroad switch track of standard grade in said alley from Eighteenth street to Seventeenth street for private use, so that said alley along that portion thereof from Eighteenth street to Seventeenth street will be entirely and wholly occupied by said defendant with its said railroad track and engines and cars used thereon, to the exclusion of all other persons whomsoever, and whereby said defendant will wholly destroy said alley as a public thoroughfare, and will confine the same to its own exclusive use without lawful authority, or any authority whatever, and wrongfully, to the great and irreparable damage of plaintiffs, which said obstruction so placed and maintained, and intended to be placed and maintained, by said defendant in said alley, will constitute a public nuisance to the whole public of the state of Missouri, and a private nuisance to these plaintiffs; that, in addition to the wrong and injury sustained by these plaintiffs as aforesaid, the said defendant is now constructing, and intends to construct, across east Eighteenth street, and across east Seventeenth street, in said city, between which said streets the property of plaintiffs abuts on said Grand avenue, a double-track railroad switch track of standard gauge, for private use, to be used in connection with and as a part of said proposed railroad switch track in said alley; that said east Seventeenth and said east Eighteenth streets are public highways and thoroughfares, and are important traveled highways in said city, and that by reason of the construction and operation of said railroad switch track across said east Seventeenth and east Eighteenth streets travel will be diverted from said streets, and from said Grand avenue, and thereby decrease the value of plaintiffs' property, and take away trade heretofore enjoyed by them; that the said injuries will be continuous, irreparable, and unascertainable, and cannot be compensated in damages. That, in addition to the wrongs and injuries sustained by the entire public by reason of the nuisances aforesaid, these plaintiffs will sustain local and specific damages and injuries to their said property, and in the use thereof, which said damage and injury is local, peculiar, and specific to them, and separate and different from that of the public generally or other persons who may suffer injury thereby; that said damage and injury so threatened, by reason of the construction of said railroad track and engines and cars, will be continuous, irreparable, and cannot be compensated in damages; that plaintiffs are without adequate remedy at law, or any remedy whatever, for the injuries and wrongs as aforesaid, except in equity for the abatement of said nuisances, and the restoration of said street to the use of the public, and especially for the free and open use of those plaintiffs in connection with their said lot. Wherefore plaintiffs pray that said defendant may be enjoined and restrained from constructing said railroad track in said alley, or from the obstruction and destruction of said alley as a public highway," etc. Defendant's answer consists: (1) Of a general denial. (2) That plaintiffs consented to the building of said railroad in said alley, and led defendant to believe that it had a right to construct and maintain the same, and upon faith thereof defendant expended large sums of money. (3) That it was a railroad organized and existing under the laws of Missouri and Kansas, and authorized to maintain and operate a railroad and engage in the switching business. Admitted that it was engaged in constructing a railroad in said alley. Averred that, in 1877, Kansas City...