Sherlock v. Kansas City Belt Railway Company

• Decision Date: 22 December 1897
• Citation: 43 S.W. 629,142 Mo. 172
• Parties: Sherlock et al. v. Kansas City Belt Railway Company, Appellant
• Court: Missouri Supreme Court

43 S.W. 629

142 Mo. 172

Sherlock et al. v. Kansas City Belt Railway Company, Appellant

Supreme Court of Missouri, Second Division

December 22, 1897 ^[*]

Appeal from Jackson Circuit Court. -- Hon. Edward L. Scarritt Judge.

Affirmed.

Pratt Dana & Black for appellant.

(1) The only damage which the evidence showed plaintiffs' property to have sustained by defendant's acts, under the ordinance, which authorized it to do certain work in the alley, was caused solely by lowering the natural surface to the grade established by the city. This damage did not entitle plaintiffs to injunctive relief. First. Because no claim therefor was made in the petition. Second. Because at the hearing plaintiffs disclaimed any right to recover therefor. Tomlinson v. Ellison, 104 Mo. 105. Third. Because the damage was in law absque injuria. Davis v Railroad, 119 Mo. 180; Van DeVere v. Kansas City, 107 Mo. 83; Julia Bldg. Ass'n v. Bell Tel. Co., 88 Mo. 275; (2) The track which defendant proposed to lay in the alley, in conformity with the provisions of the city ordinance, was not for private but for public use. This appears, first, from the evidence as to the situation and the occasion for the construction of the track; second, it follows from the duties imposed upon defendant by its charter. Const. Mo., art. XII, sec. 14; R. S. Mo. 1889, art. II, chap. 42; Deitrich v. Murdock, 42 Mo. 279; Brown v. Railroad, 38 S.W. 1099. (3) The evidence failed to show that either the construction or maintenance or operation of defendant's proposed track in the alley would, as claimed by plaintiffs, destroy the alley as a public thoroughfare and devote it to defendant's exclusive use. Prima facie, the proposed construction, maintenance and operation of the track, under the city ordinance, was lawful and not a nuisance, and the burden rested on plaintiffs to prove that the power exercised by the municipality was improperly exercised in this particular case. Brown v. Railroad, supra; Cross v. Railroad, 77 Mo. 321; Railroad v. Railroad, 97 Mo. 469; Gaus Mfg. Co. v. Railroad, 113 Mo. 308. (4) The apprehended nuisance existed only in the imagination of plaintiffs, and the evidence showed no ground for its existence there. The damages which plaintiffs thought they might sustain from the operation of this track, being only speculative and contingent, did not entitle them to injunctive relief. Julia Bldg. Ass'n v. Bell Tel. Co., 88 Mo. 275; Railroad v. Schneider, 30 Mo.App. 620; 1 High on Injunctions [2 Ed.], secs. 742, 743; 10 Am. and Eng. Ency. of Law, p. 783, and note 1 at p. 836, and cases cited.

Kenneth McC. De Weese for respondents.

(1) The right of plaintiffs to the use of the street (alley) adjoining their property, and upon which it abuts, is as much property as their lot. Spencer v. Railroad, 120 Mo. 154; Lackland v. Railroad, 31 Mo. 183; Householder v. Kansas City, 83 Mo. 488; Sheehy v. Railroad, 94 Mo. 574; Chicago v. Taylor, 125 U.S. 165; Tate v. Railroad, 64 Mo. 149. (2) A city can not authorize the construction of a railroad track, even though it be laid on the surface of a street or other highway or thoroughfare at the established grade, if in so doing such construction would amount to a monopoly or practical appropriation of the street to the railroad company, and to the practical exclusion therefrom of the public generally, and the abutting property owner, even though such railroad track was for public use. Lockwood v. Railroad, 122 Mo. 86; Knapp, Stout & Co. v. Railroad, 126 Mo. 29; Schulenberg v. Railroad, 129 Mo. 455. (3) This is not a "grading case." Spencer v. Railroad, 126 Mo. 154. (4) Equitable jurisdiction may be invoked in view of the inadequacy of the legal remedy. When the injury is destructive of, or of a continuous character, or irreparable in its nature, the appropriation of private property to public use under color of law, but in fact without authority, is such an invasion of private rights as may be assumed to be irremediable, if indeed relief may not be awarded ex delicto justitia. Osborne v. Railroad, 147 U.S. 253; Baltimore, Etc., Co. v. Baptist Church, 108 U.S. 317; Cramp v. Lambert, L. R. 3 Eq. 409; Schopp v. St. Louis, 117 Mo. 131; Glassner v. Anheuser, Etc., Co., 100 Mo. 508; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Schulenberg, Etc., Co. v. Railroad, 129 Mo. 455; Osborn v. Railroad, 37 F. 830. (5) There can be no question that a railroad track constructed in a street or other public highway without legislative sanction and authority, would be an unlawful structure and consequently a public nuisance. Before a railroad company can lawfully occupy a street with its track or tracks, it must have authority to do so from the legislature, or from some municipal corporation upon which the legislature has conferred power and authority to make such grant. A railroad company can not occupy a street under its general authority, but such right must be expressly granted or necessarily implied. A municipal corporation can not give a valid consent to such occupation without express authority conferred upon it by the legislature of the State so to do. Lewis on Em. Dom., sec. 116, pp. 151-153; Cape Girardeau, Etc., Co. v. Renfroe, 58 Mo. 565; Railroad v. Baptist Church, 108 U.S. 317; Illinois, Etc., Co. v. St. Louis, Etc., Co., 2 Dill. 84. (6) The city has no power to devote the streets to a use which is unusual, is of a permanent character, and for a purpose which is purely private. 3 Elliott on Railroad, sec. 1089; Railroad v. Mills, 85 Mich. 634; Lockwood v. Railroad, 122 Mo. 98; Knapp v. Railroad, 126 Mo. 37. (7) If the ordinance in question is valid, and is accepted by the company, and money thereafter expended upon the work, it would constitute a contract between the railroad company and the city and would set apart and surrender to the railroad company the exclusive use of the alley in question. State ex rel. v. Miller, 66 Mo. 329; Hovelman v. Railroad, 79 Mo. 632; State ex rel. v. Railroad, 85 Mo. 263; Belcher Sugar Ref. Co. v. St. Louis, Etc., Co., 82 Mo. 127; Ib., 101 Mo. 192.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

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, Missouri.

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 forty-nine and one half feet and runs westwardly one hundred and fifteen and six tenths feet to said alley. Said alley is sixteen and one half 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 stable abutted on said alley and said alley was used by the lessee in removing manure from the rear of the stable. 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 sidetrack not less than twelve nor more than thirteen 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 standard gauge 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 November 21 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 lots in question; the incorporation of the defendant rail road; the chartering of Kansas City; the nature and relative situation of the adjacent streets and alleys as already stated, and then charges that:

"Afterward 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 from Seventeenth street to Eighteenth street as aforesaid and where said lot three hundred and sixty-seven 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 or six 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...