St. Louis & S. Ry. Co. v. Lindell Ry. Co.

• Decision Date: 15 June 1905
• Court: Missouri Supreme Court
• Parties: ST. LOUIS & S. RY. CO. v. LINDELL RY. CO. et al.

88 S.W. 634

190 Mo. 246.

ST. LOUIS & S. RY. CO. v. LINDELL RY. CO. et al.

Supreme Court of Missouri, Division No. 1.

June 15, 1905.

1. MUNICIPAL CORPORATIONS — STREETS—ACQUISITION —EVIDENCE.

Subsequent to the construction of a railway track a street was laid out as a public highway across the railway right of way. The company did not dedicate the portion of the right of way as a part of the street, nor was it condemned for street purposes, but the city opened and graded the street across the right of way, laid water and sewer pipes thereunder, built sidewalks, etc., and made it as much a part of the street as any other portion thereof. The cost of the improvements was paid by the company. The public used it for a highway for about 18 years. Held, that the street across the company's right of way constituted a public highway.

2. SAME — STREET RAILROADS — PERMISSION TO OPERATE LINES ON STREETS.

A city may permit a street railway company to construct and operate a line on a public highway, though it crosses the right of way and tracks of another railway company, Const. art. 12, § 20, reserving to a city the right to permit the operation of street railroads on its streets.

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

Action by the St. Louis & Suburban Railway Company against the Lindell Railway Company and others. From a judgment dismissing the bill, plaintiff appeals. Affirmed.

Jefferson Chandler, for appellant. Boyle, Priest & Lehmann, for respondents.

MARSHALL, J.

This is a bill in equity to enjoin the defendants from crossing the tracks of the plaintiff on Hamilton avenue, in the city of St. Louis. Upon final hearing the trial court dissolved the injunction and dismissed the bill, and the plaintiff appealed. This being a proceeding in equity, the facts will be stated in the course of the opinion.

1. The decisive question in this case is whether Hamilton avenue is a public highway or street in the city of St. Louis. All other questions are subsidiary to this main question, and the solution of the main question carries with it the determination of the greater portion of the contention of counsel for plaintiff in this case.

All the parties hereto are street railway companies in the city of St. Louis, organized under the laws of this state. The plaintiff is a successor or grantee of the old St. Louis & Florissant Railway Company. In 1870, the St. Louis & Florissant Railway Company was a steam railway operated upon a narrow-gauge track. The eastern terminus was at a point almost midway between Grand avenue on the east, Vandeventer on the west, Olive on the south, and Washington avenue on the north. Its western terminus was Florissant, in St. Louis county. Defendant acquired its own right of way, which, at the point here involved, was 30 feet wide. At that time nearly the entire route of said railway lay outside of the city of St. Louis. When the city and county of St. Louis were separated and the limits of the city were extended, the locality involved in this case became a part of the city. At that time, and for many years afterwards, there were no streets in that portion of the city where Hamilton avenue now is, and very few houses of any character or description. About 1875 the owners of the property in the neighborhood of Hamilton avenue subdivided their land and platted it, laying it off into city lots, and making them abut the right of way of the old railroad company. Thereafter the locality rapidly increased in population and importance. At a time, not definitely stated, but which all the evidence shows to have been about 18 years before the institution of this suit, streets were projected running north and south, and crossing the right of way of said railway company. Among them was Hamilton avenue. That street was laid out as a public highway 80 feet wide. It ran north and south, and crossed plaintiff's right of way at right angles. The plaintiff and its predecessors never dedicated by deed or plat the portion of the right of way as a part of Hamilton avenue, nor was the same ever condemned for street purposes. But the city of St. Louis opened and graded the street for its full width across the plaintiff's right of way, laid water pipes thereon beneath the surface, constructed sewers thereunder, built sidewalks, and in all respects made it, so far as appearance and use was concerned, as much a part of the street as any other portion thereof. Electric wires were strung on and over the same, and the city every year sprinkled it, just as it did other public streets. The cost of construction of the street and sidewalk and of the sprinkling was assessed against the plaintiff or its predecessors as an abutting owner, and it was paid by the plaintiff and its predecessors. On each side, to the east and west of Hamilton avenue, the plaintiff or its predecessors placed signs on the right of way lying to the east and west of Hamilton avenue, which read: "Private Right of Way. Keep Off the Tracks." During all said period of 18 or 20 years, while the city was so using and treating it as a part of the public highway, Hamilton avenue, including the portion of the plaintiff's 30-foot right of way aforesaid, was opened to public use, and was used generally by citizens for all the purposes for which streets are commonly used. During all that time neither the plaintiff nor its predecessors objected to such use, or claimed that it was not a public highway. On the contrary, the plaintiff and its predecessors paid all of the charges, special taxes, and assessments which were levied against the remaining part of its private right of way, and which were levied by the city for the improvement of Hamilton avenue, including the portion of said 30-foot strip. Originally the track of the plaintiff and its predecessors at said point was a T rail, and plaintiff and its predecessors placed a board crossing thereat, but subsequently the plaintiff removed the T rail from within the limits of what is claimed to be Hamilton avenue, and...