St. Louis & S. Ry. Co. v. Lindell Ry. Co.
| Decision Date | 15 June 1905 |
| Citation | 88 S.W. 634,190 Mo. 246 |
| Parties | ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant, v. LINDELL RAILWAY COMPANY et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.
Affirmed.
Jefferson Chandler for appellant.
(1) No one can gain title to plaintiff's property through or because of a lack of defendant's diligence in protecting it. Adverse possession of it gives no title to it. Railroad v. Totman, 149 Mo. 657. Plaintiff can not dedicate its railroad ground to the city and keep it at the same time. A dedication of the whole system would be void. Plaintiff can not change its route, or give up its ground, in whole or in part, without the consent of the State, acting directly. Plaintiff has no power to impair its own usefulness by giving away part of its ground to the city. If one railroad company desires to cross the tracks of another railroad corporation, such corporations may agree directly among themselves and not indirectly through the city. If the railroad corporations cannot agree then the law prescribes the exclusive conditions, and the processes through which the crossing can be made. The city is not a factor in the conditions or processes. The power of the plaintiff to operate a railroad, and the limitations upon its power then existing now continue. Plaintiff had no power to consent to the laying of sewers, gas pipes, and other mentioned improvements, in the country highway, and no such power existed in the country highway itself. (2) The court will not hold plaintiff beyond the legal effect of the facts upon which the alleged dedication is predicated. One may dedicate land for a street and reserve the right for a railroad on the same street. Noblesville v. Railroad, 30 Ind. 1; Railroad v. Waycross, 91 Ga. 575; Railroad v Larson, 40 Kan. 301. (3) The law of dedication in pais has no application to the construction of a railroad crossing by a public street; no record is made of a dedication in pais. The city in opening public streets is required to proceed in so doing by ordinance. It is not comtemplated in law that the title to city streets shall rest in parol license. What occurred between the plaintiff and the city or persons in the absence of defendants, is not evidence in favor of defendants at all. Greenleaf Evidence, sec. 305. (4) There are only two ways known to the law of Missouri to effect a crossing of one railroad's company's track by the tracks of another railroad company: (a) It may be done by agreement of the parties. (b) It may be done by condemnation. There is no such thing known to the law as that such right arises in pais. The courts are the judges of the public welfare. Railroad v. Kansas City, 110 Mo 510; 2 Tucker on the Constitution, 870; Monongahela N. Co. v. United States, 148 U.S. 312; Loan Assn. v. Topeka, 20 Wall. 655; Railroad v. Nebraska, 164 U.S. 403. (5) The Legislature having provided who shall determine the questions arising out of an effort of one railroad company to cross another, no other person or tribunal can substitute its judgment for that of the tribunal appointed. Mills, Eminent Domain, sec. 84; Springfield v. Whittock, 34 Mo.App. 649.
Boyle, Priest & Lehmann for respondent.
(1) The strip of land in question is a public highway and a part of Hamilton avenue, becoming such: First. -- By prescription through use as a public highway for more than ten years. Schenck v. City of Butler, 50 Mo.App. 106; Heitz v. St. Louis, 110 Mo. 618; Meniers v. St. Louis, 130 Mo. 274; Albert v. Railroad, 2 Tex. Civ. App. 664. Second. -- By dedication in pais, made both by the owners of the fee and by the owners of the railroad right of way. City of Eureka v. Armstrong, 22 P. 928; Ellsworth v. Lord, 40 Minn. 337; Kellogg v. Malin, 50 Mo. 496; Chouteau v. Railroad, 122 Mo. 375; Hannibal v. Railroad, 49 Mo. 480; Railroad v. Brownell, 24 N.Y. 345; Railroad v. Greenbank, 52 N.Y. 510; Lewis on Eminent Domain, sec. 491; Railroad v. Chicago, 29 N.E. 1109; Railroad v. Railroad, 66 Mass. 605; Railroad v. Chicago, 166 U.S. 226; 3 Elliott on Railroads, sec. 1135; City v. Railroad, 29 N.E. 484; Lade v. Shepherd, 2 Strange 1004; Gamble v. St. Louis, 12 Mo. 618; Stevens v. Nashua, 46 N.H. 192; Moffett v. South Park, 138 Ill. 620; Witter v. Donitz, 81 Wis. 385; Manderschid v. Dubuque, 29 Ia. 73; Dillon on Mun. Corp., sec. 631; Rosenberger v. Miller, 61 Mo.App. 422. (2) Formal acceptance by the city was not necessary to its establishment as a public highway. Boyd v. Springfield, 62 Mo.App. 456; Brown v. Railroad, 20 Mo.App. 427; State v. Wells, 70 Mo. 635. (3) The city has accepted the strip of land in question as a part of Hamilton avenue. Gibson v. Zimmerman, 27 Mo.App. 90; Maus v. Springfield, 101 Mo. 613; Hill v. Sedalia, 64 Mo.App. 494; Golden v. Clinton, 54 Mo.App. 100. (4) A public highway or crossing may be established over a railroad right of way by user. Easley v. Railroad, 113 Mo. 236; Railroad v. Crownpoint, 50 N.E. 741; Railroad v. Ft. Branch, 49 N.E. 2; Railroad v. Britt, 74 N.W. 933; Railroad v. Greensburg, 35 A. 122; Kelly v. Railroad, 9 N.W. 589; Railroad v. Kaufman Co., 42 S.W. 586; Soward v. Railroad, 33 Ia. 386; Railroad v. Jordan, 10 A. & E. R. R. C. 301; Railroad v. Boswell, 36 N.E. 1103; Railroad v. Waycross, 13 S.E. 835; Village v. Railroad, 46 Minn. 505. (5) The question involved is to be determined, in so far as it depends upon the intention of the proprietors of the land, by past acts evidencing that intention, rather than by present testimony concerning it. Columbus v. Dahn, 36 Ind. 330; McCain v. Des Moines, 174 U.S. 168. (6) A street or highway, however established, whether by prescription or dedication, may be put to any public use consistent with its use as a highway. Railroad by Whitham, 155 Ill. 514; Railroad v. Stephens, 29 S.W. 14; Julia Building Ass'n v. Bell Co., 88 Mo. 258; Elliott on Roads and Streets, 133; Cincinnati v. White, 6 Peters 431; State v. Walters, 69 Mo. 463; State v. Wells, 70 Mo. 635; State v. Proctor, 90 Mo. 334; Railroad v. Railroad, 97 Mo. 457. (7) A street once established is such for all the public, and the original owner may not exclude any from its use. Atty.-General v. Farr, 19 N.E. 358; Penny Pot Landing v. City, 16 Pa. 79; 9 Am. and Eng. Ency. Law, 23.
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.
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 thirty 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 eighteen 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 eighty 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 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...
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