State v. Boonville R. Bridge Co.

• Decision Date: 02 July 1907
• Parties: STATE et rel. CROW, Atty. Gen., v. BOONVILLE R. BRIDGE CO. et al.
• Court: Missouri Supreme Court

103 S.W. 1052

206 Mo. 74

STATE et rel. CROW, Atty. Gen., v. BOONVILLE R. BRIDGE CO. et al.

Supreme Court of Missouri.

July 2, 1907.

1. MANDAMUS—NATURE OF WRIT—ISSUANCE—DISCRETION.

Whether a writ of mandamus be regarded as a prerogative writ or a writ of right, it will only be granted in the exercise of sound legal discretion.

2. SAME—LACHES OF STATE.

Though the doctrine of estoppel or laches is not applicable to the state, yet, where the state has acquiesced in the exclusive use of a bridge for railroad travel for nearly 30 years, the court is entitled to consider such fact in determining whether the state in the exercise of the court's discretion is entitled to mandamus to compel the owners and operators of the bridge to alter and open it for ordinary public travel.

3. SAME—EVIDENCE.

Where two corporations, owning and operating a bridge under a franchise authorizing them to maintain a toll bridge for railroad purposes as well as for general travel, for nearly 30 years had been permitted to maintain the bridge exclusively for railroad transportation, evidence held insufficient to justify the court in the exercise of a legal discretion in issuing mandamus commanding that the bridge should be so altered, strengthened, and changed as to be available as a toll bridge for general travel.

In Banc. Mandamus by the state on relation of Edward C. Crow, Attorney General, against the Boonville Railroad Bridge Company and another. Writ denied.

This is a proceeding by mandamus to compel the opening of the Boonville railroad bridge for general road travel. The alternative writ recited that the Boonville Railroad Bridge Company was incorporated under the laws of the state of Missouri in December, 1870, for the purpose of constructing and operating a public toll bridge across the Missouri river at Boonville, Mo., and was to be used for both railroad and ordinary road travel, and that by virtue of its incorporation it was vested with power and authority to exercise the right of eminent domain necessary to acquire proper terminals and approaches, and to construct and operate a bridge for the purposes aforesaid for a period of 100 years; that immediately after its incorporation it did, during the years 1870, 1871, and 1872, by virtue of said authority, erect a large steel and iron bridge over the Missouri river at Boonville, and also constructed proper and sufficient approaches and driveways, leading to and from said bridge at either end; that said bridge was floored with thick oak lumber for the accommodation of ordinary road travel, and that in or near the middle of said bridge were laid iron and steel rails for the crossing of railroad trains; and that said bridge was so constructed and was of sufficient strength and width as to be well adapted to the crossing over of both railroad trains, vehicles, foot passengers, and other ordinary road travel; and that at the last-mentioned dates and for many years thereafter said bridge company maintained and operated said bridge as a public one for the crossing of not only railroad trains, but for the crossing of vehicles, foot passengers, and other ordinary road travel, and the said bridge was during said years used by the public generally, who desired to cross the same on foot or horseback, in wagons and in other vehicles.

The writ farther charged that about May, 1873, the bridge company leased to the railway company, a corporation organized under the laws of Kansas, the bridge and all the property connected therewith for the full term of the corporate existence of the bridge company, and that by the terms of said lease the bridge company agreed to maintain its corporate existence and organization during said term, and the railway company covenanted to pay all the expenses incident thereto, and also to maintain and operate the bridge as a public toll bridge for the crossing of both railroad and ordinary road travel, so as to satisfy the demands of the public, and to do and perform all requirements then existing or that might thereafter be imposed on the bridge company by the laws of Missouri; that the bridge company is still a body corporate with powers aforesaid, and that the railway company still is a corporation, operating a railroad through the counties of Cooper and Howard in the state of Missouri; "that said bridge constitutes a direct and important means of public travel, and one necessary to the convenience of a great number of citizens of the state of Missouri; that the nearest crossing over the Missouri river below said bridge is at Jefferson City, forty miles distant, and the nearest above said bridge is at the city of Glasgow, twenty miles distant; that there are many thousands of persons in the country and cities tributary to the said railroad bridge, and especially in the populous cities of Boonville, Bunceton, and Pilot Grove in Cooper county, and in the cities of Fayette, New Franklin, and Rocheport in Howard county, who desire to travel over and use said bridge for ordinary road travel, and to drive and move their cattle, horses, hogs, and other property, and the farm products, over and across said bridge at reasonable rates of toll, and who would so use said bridge were they not wrongfully and unlawfully excluded therefrom."

The said writ also charges that while it was the duty of the bridge company by virtue of the law of the state of Missouri, and of the railway company by virtue of the lease aforesaid, to so use and operate and maintain said bridge, yet both of said companies "wholly disregarded their duties in the premises, and in violation of the laws of the state of Missouri, and in utter disregard of the rights of said state and its citizens and the public who desire to use and have the right to use said bridge for ordinary road travel, about 1880 wrongfully and unlawfully took up and removed the flooring of said bridge, blockaded its approaches, and closed said bridge to public travel, and have ever since wrongfully and unlawfully turned away from said bridge many thousands of persons who desire to cross the said bridge on foot, on horseback, in wagons and in other vehicles, and who have applied daily to cross said bridge, offering and tendering a reasonable toll therefor, and that since said time the railway company, with the consent and at the direction of the bridge company, has wrongfully and unlawfully excluded ordinary road travel from said bridge, and ever since has used and now uses said bridge for its own purposes exclusively for the crossing of its trains," etc.

The command of the writ to the respondent is that "You do forthwith reconstruct proper approaches and roadways at either end of said Boonville Railroad Bridge; that you refloor the same, and that you proceed to so equip and furnish said bridge so as to provide for the reasonable accommodation of ordinary road travel as well as for railroad trains, and that said bridge be thrown open to the public for ordinary road travel, and at reasonable rates of toll," and that they show cause why they have not done so.

The respondents filed separate returns, which were the same in effect, the necessary changes being made to adapt the return to the different conditions relating to the respective respondents. The substance of the returns is as follows: It was admitted that the bridge company was organized as a business corporation under the laws of Missouri, December 19, 1870, and that by its articles of association it was to have the right to operate a public toll bridge for the crossing of persons and property by ordinary road travel if they should desire to do so, and should obtain proper authority therefor. It was denied that any authority was derived from the state of Missouri to construct and operate a bridge for any purpose whatever across the Missouri river. It was admitted that about the years 1871, 1872, and 1873 the bridge company did procure a bridge to be constructed across the river at Boonville, and caused a track to be laid thereon for the passage of railroad trains, but denied that it ever constructed any approaches or driveways at either end of the bridge, or that the bridge was fitted for ordinary road travel, or that the bridge was ever used at any time by the public for general road travel, either on foot or horseback, in wagons or other vehicles. It is also alleged that the Missouri river is a navigable stream, over which the Congress of the United States has assumed jurisdiction and control, and alone has the right and authority to regulate and control the use of the same, and especially to control and regulate the erection of bridges across said river, and that the state of Missouri has no authority, and could not and did not attempt, to confer any right or authority to construct the bridge across the river at Boonville; that the bridge was constructed under the authority of an act of Congress approved May 11, 1872, entitled "An act to authorize the construction of a bridge across the Missouri river at Boonville, Missouri" (17 Stat. 99, c. 158), and that the right, privilege, and franchise for the construction of said bridge depends entirely upon the construction of the said law of the United States, which was the only right, authority, or franchise ever granted for said bridge, and that by the same the use of the bridge was restricted and confined to the purpose of laying railway tracks over said bridge for the more perfect connection of railroads that might be constructed to the Missouri river at said point; and that no authority or franchise was ever granted to operate or use said bridge for general road travel.

It was admitted that about May 1, 1873, the bridge company leased the bridge, together with the property connected therewith, to the respondent railway company; that the bridge company has ever since maintained its separate corporate existence, and it is denied that the railway company covenanted to operate the bridge as a public toll bridge for...