State v. Dreyer

• Decision Date: 21 June 1910
• Parties: STATE ex rel. ROLAND v. DREYER, Mayor, et al.
• Court: Missouri Supreme Court

129 S.W. 904

229 Mo. 201

STATE ex rel. ROLAND v. DREYER, Mayor, et al.

Supreme Court of Missouri.

June 21, 1910.

1. MANDAMUS (§ 3)—EXISTENCE OF REMEDY BY INJUNCTION.

Mandamus will not lie to prevent the threatened action of a railroad company in constructing tracks on and using, under permission granted by city ordinances, a public levee; injunction being the remedy.

2. COURTS (§ 207)—SUPREME COURT—JURISDICTION —INJUNCTION.

Under the power granted the Supreme Court by Const. art. 6, § 3 (Ann. St. 1906, p. 214), to issue original remedy writs, the court may not issue an injunction.

3. WHARVES (§ 4)—"PUBLIC LANDING."

A "public landing" is a place on a river or other navigable water for loading or unloading goods or for the reception and delivery of passengers.

4. DEDICATION (§ 58)—CHANGE OF USE.

A grant for a specific, limited, and definite public use cannot be diverted to a different and inconsistent use, and the Legislature may not destroy the trust or divert it directly, or authorize a municipality to divert it to a different purpose.

5. RAILROADS (§§ 89, 96)—RIGHT OF WAY— CROSSINGS.

In Missouri the right of way of railroad companies is subject to crossings by other railways and by streets and public roads under proper limitations.

6. DEDICATION (§ 57)—USE—PURPOSES OTHER THAN TRAVEL.

A street dedicated to public use for the passage of vehicles and pedestrians may, in addition, be used for street railways, gas and electric light wires and poles, and subways, which do not interfere with or destroy its value for a public highway.

7. DEDICATION (§ 57)—USE—RAILROAD PURPOSES.

Though land in a city abutting on a river was dedicated for levee purposes only, the city might by ordinance grant a railroad the right to occupy the same with its tracks; such tracks not interfering with the use originally intended, but aiding therein by facilitating the handling of freight unloaded from boats.

Lamm, J., dissenting in part.

In Banc. Original proceeding by the State, on the relation of James D. Roland, for mandamus against John Dreyer, Mayor of the City of Hannibal, and others. Writ denied.

Thos. F. Gatts, for relator. Geo. A. Manan, O. M. Spencer, Robert & Robert, Berryman Henwood, and Albert R. Smith, for respondents.

GANTT, J.

This is an original proceeding in this court to obtain a mandamus from this court against the mayor and officers of the city of Hannibal in their official capacity to cancel and revoke the license and franchise granted by certain ordinances of the said city to the Chicago, Burlington & Quincy Railroad Company to build and operate its railroad tracks upon and across the public levee of the city of Hannibal, and to require the said railroad company to immediately cease operation under said franchise or license and to remove any and all obstruction now placed or being placed upon said public levee by virtue of the said ordinance.

The petition states:

That the relator is a citizen of Hannibal and a householder and taxpayer therein, and that he brings this suit on behalf of himself and other residents and taxpayers of said city. That the respondents are the mayor and city council of said city, and the defendant the Chicago, Burlington & Quincy Railroad Company is a duly organized and chartered railroad company owning and operating a line of railroads through the state of Missouri and the city of Hannibal. That the charter of the said city provides, among other things, that the said city shall have power "to prevent and remove all encroachments or incumbrances upon all streets, lanes, avenues and alleys established by law or ordinance." That in the year 1830 Stephen Glascock, who was then the owner in fee of the land, made, executed, and filed a plat of the city of Hannibal, which said plat was duly acknowledged and filed of record and deposited in the recorder's office of the county of Marion in the state of Missouri, in which said city is located. That upon said plat the said Stephen Glascock, as the owner in fee of the land upon which said city was located, laid out and platted streets, alleys, and other public grounds in said city and duly dedicated the same as such streets, alleys, and other public grounds to the public generally for the use of the public for such uses as designated upon said plat. That among other public lands located, designated, dedicated, and named upon said plat was a piece of ground located and designated on the plat, and was marked as a "public levee" or "public landing," and duly dedicated as such public levee to the use of the public generally and as a steamboat landing on the Mississippi river. That said public levee and piece of ground so dedicated and named as a public levee was duly platted and located between the south line of Broadway street, the east line of First street, and the south line of North street so named on said plat; it being a piece of ground located between said First street on the west and low-water mark on the Mississippi river on the east, and between said streets so named on the north and south. That said public levee was duly accepted and used by the city of Hannibal as a public levee, and has been continuously in use by the public generally for a steamboat landing and for the landing of steamboats on the Mississippi river from the date of the filing of the said plat up to the present time. That entering into and upon said public landing on First street and on the east line of said public landing are the following named streets: Broadway, Center, Bird, Hill, and North streets. That the city of Hannibal is now a city of 20,000 population, and said public landing is of great utility and public benefit to the citizens of Hannibal generally and to the common public. That the Mississippi river is one of the greatest waterways and navigable streams in the United States and is of great value in public utility to the city of Hannibal as such navigable river, and would become more so in the future in view of the great public interest now being had and taken for the improvement of navigable rivers by the United States government for the transportation of freight and passengers on said river.

That on the 3d day of December, 1906, the mayor and city council of the city of Hannibal undertook to and did grant the right and franchise to the Chicago, Burlington & Quincy Railroad Company to construct over and upon said public landing a doubletrack railroad with spur tracks and switch tracks as well, by an ordinance of that date, in consideration of which the said railroad company agreed to pay the city the sum of $10,000. That the said ordinance was accepted by the defendant railroad company That before the acceptance of the said ordinance by the said railroad company amendments were made until the words "double track" were stretched into tracks and railroad tracks, so that the restriction to a double track was obliterated, and, should the said railroad company be permitted to occupy or cross the said public landing, there is enough in this amendment of the said ordinance to tie the city's hands if it should endeavor to prevent the railroad company from constructing any number of tracks and making a switchyard of the public levee and destroy it as a public landing. That it is a well-established rule of law that, when the owner of the fee dedicates certain lands to specific uses forever, such uses were solely in the mind of the donor at the time he filed his plat, and that Stephen Glascock when he filed a plat of the city of Hannibal had in mind a perpetuation of a public levee for steamboat landing and for the perpetual use of such landing by the general public forever, and the city had no power to divert such designated public use to any other use, public or private, for gain or no gain, but that the only power the city had over said levee is the power to control and maintain the same for a public levee for the use of the public. That should the said railroad company be permitted to take possession of said levee and build a double track across the length thereof along the river front, as it proposes to do according to a plat and blueprint on file in the city, such tracks will practically run through the center of said public levee the entire length thereof, and, as the railroad company proposes to construct said tracks so as to avoid the effect of the rise and fall of the river, the tracks would have to be lifted to a height of over six feet above the present surface of said levee and boat landing, and thus would cut off the egress and ingress over said levee through the steamboat landing for loading and unloading freight and passengers. That the Mississippi river often changes its high-water line on the said levee as far up as the east line of First street on the western side of the said levee, and said railroad track, if constructed as proposed, would in time of high water in the river entirely destroy the use of the levee in shipping freight or unloading freight. That the city in attempting to grant said franchise to the said railroad company subserves no public interest, but only the private interest of the defendant railroad company in furthering its desire and purpose of destroying freight and passenger transportation upon the Mississippi river at Hannibal. That the said railroad company now has ample track facilities for the running of its trains into and through Hannibal and to the Union Depot in said city by the present use it is now making of First street along the west line of said public levee. The pleader thus pleads the necessity for immediate relief in the premises.

An alternative writ was granted by this court returnable on December 15, 1909. On that date, the respondents filed their return, in which they admitted that the respondents named as mayor and city councilmen were the duly qualified officers of the said city, and that the city of Hannibal was a municipal corporation organized and existing by virtue of a special...