St. Louis R.R. Co. v. Northwestern St. Louis Ry. Co.

• Decision Date: 31 October 1878
• Citation: 69 Mo. 65
• Parties: THE ST. LOUIS RAILROAD COMPANY, Appellant, v. THE NORTHWESTERN ST. LOUIS RAILWAY COMPANY.
• Court: Missouri Supreme Court

69 Mo. 65

THE ST. LOUIS RAILROAD COMPANY, Appellant,

v.THE NORTHWESTERN ST. LOUIS RAILWAY COMPANY.

Supreme Court of Missouri.

October Term, 1878.

Appeal from St. Louis Court of Appeals.

Glover & Shepley for appellant.

Geo. A. Madill with whom was Thos. E. Ralston for respondent.

HOUGH, J.

This was a suit brought by the plaintiff on the 21st day of July, 1874, to enjoin the defendant from constructing a street railway over that portion of Ninth street, in the city of St. Louis, lying between Hempstead street and North Spring street, on the ground that the construction and operation of a railroad thereon would be an encroachment upon and interference with the exclusive rights and privileges of the plaintiff. Ninth street, between the points named, is the street next adjacent to Broadway along which plaintiff's road has been constructed, and is parallel thereto.

The plaintiff was organized as a corporation in the year 1859, under the act of the General Assembly entitled “An act to authorize the formation of railroad associations and to regulate the same,” approved December 13th, 1855, for the purpose of constructing, operating and maintaining a railroad for the conveyance of persons and property, to be worked by horse power only, from Bellefontaine cemetery to the southern boundary of the city of St. Louis. In the year 1859, the plaintiff was, by sundry ordinances, authorized to construct and operate its road from the northern limits of the city down the Bellefontaine road and Broadway to O'Fallon street, thence south along Fifth street with double track to such street between Market and Myrtle streets, as said company should select, and thence to the southern boundary line of the city, and in the years 1859 and 1860, completed, and has ever since maintained and operated the same as now located.

On January 16th, 1860, an act was passed by the General Assembly, the first section of which is as follows: Section 1. The St. Louis Railroad Company, the People's Railway Company and the Citizens' Railway Company, as heretofore organized under the act to authorize the formation of railroad associations, and to regulate the same, approved December 13th, 1855, are hereby ratified and confirmed in their respective rights under said law; and the roads now built or commenced, and the gauge of track established by said companies is sanctioned; and said gauge of four feet ten inches is hereby recognized as the legal gauge of all other street railroads that may be built in the city and county of St. Louis. Said companies shall conform to and be governed by said law concerning railroad associations, except as follows: 1. Said companies shall not be required to carry freight. 2. The report made to the city comptroller shall be in lieu of the annual report required to be made to the Secretary of State, by the law under which said companies organized. Section two prohibits the construction of street railroads on certain streets.

Section three is as follows. Section 3. No street railroad shall hereafter be constructed in the city of St. Louis nearer to a parallel road than the third parallel street from any road now constructed, or which may hereafter be constructed, except the roads hereinbefore mentioned; and in consideration of the privileges herein granted, the city of St. Louis is hereby expressly empowered to impose and levy such tax and license upon said roads now constructed or that may hereafter be constructed, as the common council of said city may determine to be just and proper; and the said city may make such municipal regulations concerning said street railroads as the public interests and convenience may require, except to reduce the rate of fare charged by said companies as now fixed by ordinance of the city of St. Louis.

On the 12th day of June, 1874, the Northwestern St. Louis Railway Company organized as a corporation under the general law concerning manufacturing and business companies, and by ordinance dated June 30th, 1874, was authorized to construct its road from the corner of Sixth and Locust, west on Locust to Ninth street, north on Ninth street to North Spring street, west along North Spring street to St. Louis avenue, and thence along St. Louis avenue to Jefferson avenue.

The only question of importance presented by the record is as to the proper construction of the following paragraph of section three of the act of 1860: “No street railroad shall hereafter be constructed in the city of St. Louis nearer to a parallel road than the third parallel street from any road now constructed, or which may hereafter be constructed, except the roads hereinbefore mentioned.” It was conceded at the argument that at the time of the passage of the act aforesaid, the Peoples' railway had not been constructed. The plaintiff's road was constructed in 1859 and 1860, and as the act in question was passed on the 16th day of January, 1860, it is quite probable that the plaintiff's road was not then entirely completed. The precise date of its completion is not given. The track of the St. Louis railroad ran along Fifth street for a long distance in the central portion of the city, and the track of the Peoples' railroad ran along Fourth street in the same portion of the city for a considerable distance, and then ran west on Chouteau avenue. Fourth street is the next parallel street to Fifth street.

1. STREET RAILROADSIN ST. LOUIS: parallel lines.

In construing the paragraph above quoted the circuit court held that the plaintiff would be protected thereby from the encroachment threatened by the defendant, if the defendant's road could be considered as a parallel road; but as the general direction of the plaintiff's road was from north to south, and that of defendant from northwest to southeast, with a distance of only half a mile over...