State ex rel. Morris v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1885
• Citation: 86 Mo. 13
• Parties: THE STATE ex rel. MORRIS et al., Appellants, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY.
• Court: Missouri Supreme Court

86 Mo. 13

THE STATE ex rel. MORRIS et al., Appellants,

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Clay Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

Samuel Hardwicke and Simrall & Sandusky for appellants.

(1) Mandamus is an appropriate remedy to compel the respondent to comply with the law and with the charter of the Kansas City, Galveston & Lake Superior Railroad Company, in relation to public highways, under which the respondent's railroad was constructed. State v. Northeastern Ry. Co., 9 Rich. (S. C.) 247; The People ex rel., etc., v. Troy & Boston Ry. Co., 37 How. Pr. 427; High's Ex. L. Rem., secs. 319, 329, p. 226, and secs. 276-7, p. 199 (1 Ed.); Indianapolis & Cincinnati Ry. Co. v. The State, 37 Ind. 489; The People ex rel., etc., v. C. & A. Ry. Co., 67 Ill. 118; Inhabitants of Cambridge et al. v. Charlestown Pr. Ry. Co., 7 Metc. (Mass.) 70. (2) In the absence of express charter provisions to the contrary, every railway company is under obligation by the common law to restore every highway that it touches to its former usefulness, or to substitute a new one. The People ex rel., etc., v. C. & A. Ry. Co., 67 Ill. 118. It was respondent's duty, both by common law and by charter, not to obstruct the highway in controversy. (3) Where the public are interested, any private person may move for a mandamus. High's Ext. L. Rem., secs. 431, 434, p. 304; Union Pacific Ry. Co. v. Hall et al., 1 Otto, 355; The People ex rel. Case et al. v. Collins et al., 19 Wend.56. (4) The obligations of a railway company to restore a highway to its original condition remains constant until performed, and the alteration in the interim a continuing nuisance; the statute of limitation is not applicable. Hamden v. New Haven & Conn., etc., Ry. Co., 27 Conn. 158; Welcome v. Leeds, 51 Me. 313; State, etc., v. Railroad, 29 Conn. 538. (5) The same duty devolves upon any successor. People, etc., v. Railroad,67 Ill. 118. And the old highway continues until a new one is substituted. Barber v. Essex, 27 Vt. 62. (6) There was nothing in the case showing acquiescence on the part of the public.

Geo. W. Easley for respondent.

BLACK, J.

The relators, judges of the county court of Clay county, and the road overseers, sued out an alternative writ of mandamus, requiring the respondent to so construct its road, where it passes along a specified portion of a public highway, as not to prevent the public from using the highway, or show cause, etc. Upon a trial of the cause, upon an agreed statement of facts, the peremptory writ was denied. Respondent has failed to file any abstract or brief, and we shall look to appellant's abstract as a full and true statement of the case.

The Kansas City, Galveston & Lake Superior Railroad Company was created under a special act passed in 1857; subsequently, its name was changed to the Kansas City & Cameron Railroad Company; and, still later, that corporation was consolidated with the respondent, The Hannibal & St. Joseph Railroad Company. In 1848, the county court of Clay county established a public highway through a part of that county, and along the foot of the Randolph Bluffs, upon a narrow space of level land. From thenceforward this road was used as a public thoroughfare. Long subsequent thereto the railroad company procured a right of way from the owners of the land, and, in 1867, the railroad constructed its road close to the river, using for that purpose a part of the public road. This rendered the public road more or less unsafe, but it was still continuously and largely used as a public road until 1879. In that year the St. Louis, Kansas City & Northern Railroad Company, claiming a track under certain proceedings to condemn a part of the right of way of respondent, removed the road of the Hannibal & St. Joseph Railroad Company, and placed it in the public road, at the same time placing its own road where the Hannibal & St. Joe road-bed was formerly located. The latter company has continued to use its road thus re-located ever since. By reason of all this, the public road was wholly obstructed, and this obstruction has been continued from that time to the filing of this suit. It appears the respondent endeavored to restrain the St. Louis, Kansas City & Northern Railroad Company from thus moving its road, but did not succeed in so doing.

The eleventh section of the charter of the Kansas City, Galveston & Lake Superior Railroad Company provides: “Said company may build said road along or across any state or county road * * * but whereever said railroad shall cross any state or county road, said company shall keep good and sufficient cross-ways, or adequate facilities for crossing the same; and said railroad shall not be so constructed as to prevent the public from using any street, road or highway along or across which it may pass.” This statute is clear and explicit. The duty to so construct the railroad as...