St. Louis, K. & N. W. Ry. Co. v. Clark

• Citation: 25 S.W. 192,121 Mo. 169
• Court: United States State Supreme Court of Missouri
• Decision Date: 23 December 1893
• Parties: ST. LOUIS, K. & N. W. RY. CO. v. CLARK et al.<SMALL><SUP>1</SUP></SMALL>

25 S.W. 192

121 Mo. 169

ST. LOUIS, K. & N. W. RY. CO. v. CLARK et al.¹

Supreme Court of Missouri.

December 23, 1893.

EMINENT DOMAIN — COMPENSATION — RAILROAD RIGHT OF WAY.

1. Though, under Const. art. 2, § 21, a railroad right of way condemned in invitum is but an easement, carrying no greater dominion than needful, the Missouri fencing laws exclude the owner of the fee, with all others, from any use of the surface, unless at public crossings, or private crossings to which he may be entitled by statute or necessity.

2. In condemning a strip across a tract used as a whole for sawmill purposes, and ending in a wharf, within the limits of a city, where the speed of trains is governed by ordinance, a railroad may, in mitigation of damages, offer to build and maintain for the owner open crossings to aid in the use of his land as one tract. Macfarlane, J., dissenting, on the ground that the owner is by law entitled to such crossings.

3. Evidence of the price paid about the same time in private sales of neighboring property is competent.

4. The owner may show the oral agreement of a railroad company running by his land to build side tracks to connect with tracks on the land, which cannot be carried out owing to the intervention of plaintiff's right of way. Brace, Gantt, and Sherwood, JJ., dissenting.

5. Plaintiff cannot object to such evidence on the ground that the agreement was within the statute of frauds, as it is not a party to the agreement.

6. When the company has paid the amount of the commissioners' award into court, and the court has ordered it to be paid to the owner, the latter is not entitled to interest on the amount assessed by the jury from the time the company took the land, but only to such interest as the money may have earned while in the court's custody. Sherwood, J., dissenting.

7. The fact that by the condemnation a railroad empowered by the city to run spurs for private use is cut off from access to the owner's wharf is an element of damages.

8. It is proper to charge that the railroad company is not bound to continue its custom of hauling over its switches gratis.

In banc. Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Proceedings by the St. Louis, Keokuk & Northwestern Railway Company against William G. Clark and another to condemn a right of way. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by MACFARLANE, J.:

This is a proceeding to condemn a right of way for the railroad of plaintiff, 50 feet wide, through a tract of about 38 acres of land, lying north of, but within the limits of, the city of St. Louis, belonging to defendant Clark. The tract is a parallelogram, fronting on the Mississippi river about 1,000 feet, and extending back west from the river about 1,700 feet, to within about 90 feet of Hall street. The river front extending back west about 446 feet was used by Clark as a wharf. The river front both north and south of this wharf, extending back west from the river the same distance, was a public wharf. Clark's land was formerly bounded on the west by Hall street, but the strip of about 90 feet next to and east of Hall street had been sold and conveyed to the St. Louis Merchants' Bridge Terminal Railway Company. The west side of the right of way through the public wharf, and that condemned through Clark's land, was parallel to, and 11 feet east of, the west line of the wharf. No street or public ground, except the public wharf, touched Clark's property. Bremen avenue, commencing at the public wharf, runs west, parallel to, and about 325 feet south of, Clark's south line; and Angelica street, also commencing at the public wharf, runs west, parallel to, and about 145 feet north of, Clark's north line. The right of way through the Clark tract took 1.135 acres, and left 8.68 acres on the east side, next to the river, and left 28.85 acres on the west side. The only public way from one side of the right of way to the land on the other side was over the public wharf, and through the 11-foot strip of that wharf west of the right of way. This passway could be used at either the north or south end of the land condemned. Along Hall street the St. Louis Merchants' Bridge Terminal Railway is laid. The situation will be more readily understood by reference to the following plat:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The petition, asking the condemnation of the land for the construction, maintenance, and operation of its road for the appointment of commissioners to assess the damages therefor, was filed in the circuit court of the city of St. Louis. Commissioners were appointed, who afterwards made a report allowing $87,510 as damages. Neither party being satisfied with the award, both demanded a jury. Plaintiff thereupon paid the amount of the award of the commissioners into court, took possession of the land, and constructed its road. A jury trial was afterwards had, and the damages assessed at the sum of $72,000, and interest thereon from June 29, 1891, (the date plaintiff paid the money into court,) at 6 per cent., making $2,019.18. Judgment was thereupon rendered for said sum, and it was ordered that the sum of $74,018.18 be paid defendants out of the money deposited in court, and that the balance be paid plaintiff. Plaintiff gave bond, and appealed from this judgment to this court.

John G. Chandler and Geo. A. Madill, for appellant. Lee & Ellis and Rowell & Ferriss, for respondents.

MACFARLANE, J., (after stating the facts.)

All the errors assigned grow out of the rulings of the court upon the trial.

1. The first instruction given at request of defendants is the subject of earnest complaint, and the declaration of law therein announced is severely criticised. The instruction is as follows: "No. 1. The court instructs the jury that the railroad company is entitled to the exclusive possession and control of its right of way across Clark's land, and neither Clark, nor any one claiming said land, or any part thereof, has the right to cross said railroad tracks, except upon a street or alley." It is manifest that the damage defendants may suffer by the maintenance and operation of the road depends largely upon the right to use the railroad track and right of way in passing from one part of their land to the other. The question is a vital one, in this case, and merits careful consideration. The constitution itself provides that "the fee of land taken for railroad tracks, without the consent of the owner thereof shall remain in such owner, subject to the use for which it is taken." Section 21, art. 2, Const. A railroad company, therefore, in securing land for its tracks by condemnation, under this limitation of its power, only acquires an easement therein. This constitutional provision, by its terms, applies, not only to lands condemned by railroad companies, but the same principle is applied to rights acquired by condemnation for other public uses, (Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 125,) and was applied to land condemned for railroad purposes before the adoption of our present constitution. Kellogg v. Malin, 50 Mo. 496; Evans v. Haefner, 29 Mo. 150. We must take it, then, as settled, that plaintiff could acquire by these proceedings only the right to use the land for the purposes of its railroad, and the fee to the land taken remained in the defendants; but it does not follow that the owner retains even the right to a limited use of the surface of the land condemned. It was said by Napton, J., in Snyder v. Warford, 11 Mo. 514, in speaking of the rights of the parties in land over which a private right of way existed, that "it is not an interest in the land, but merely an easement, which conflicts not in the slightest degree with the absolute proprietorship of the owner." On the other hand, while, under the constitution, the fee to the land condemned for public use for a railroad remains in the owner, it contemplates that all his proprietary rights, at least to the surface, may be divested. It is clear that the relative rights acquired by the one obtaining an easement, and of those remaining in the owner, depends much upon the character of the use to which the easement is applied. A use for telegraph and telephone wires above the surface, and for the water mains and sewers beneath the surface, would but slightly interfere with the proprietorship of the owner upon the surface of the ground. A plank or macadamized road on the surface would only interfere with the actual occupancy or obstruction of the owner. Unless under some statutory regulation, he could use all these easements in any manner not inconsistent with the full enjoyment of the uses to which they were intended to be applied. He could plow, plant, and reap beneath the wires and over the sewers without material interference with these easements. There is no reason, either under the constitution or common right, why all public easements should not be subject to reasonable regulations by the state. One could not defend against the charge of obstructing a public road on the ground that he was the owner of the fee therein, nor would the fact that he had left unobstructed a passway sufficient for all public travel excuse him. The same may be said of horseracing, or shooting at a mark on a public road. It is unnecessary to state that the uses made of railroad tracks are vastly different from those of any other easement. Trains are not infrequently run upon them at the rate of twelve or fifteen hundred yards per minute. This rate of speed is demanded by the traveling and business public. Trains are run at all hours of the day and night. The least and most temporary obstruction is liable to cause terrible destruction of life and property. It takes no argument to show that the owner of a fee has no more right to imperil the safety of those lawfully using the track than has a stranger. The constitution does...