State v. Homer

• Decision Date: 05 March 1912
• Citation: 145 S.W. 497
• Parties: STATE ex rel. GRANITE CITY & M. B. L. R. CO. et al. v. HOMER.
• Court: Missouri Court of Appeals

145 S.W. 497

STATE ex rel. GRANITE CITY & M. B. L. R. CO. et al. v. HOMER.

St. Louis Court of Appeals. Missouri.

March 5, 1912.

1. COURTS (§ 142)—JURISDICTION—LOCAL OR TRANSITORY ACTION.

A deed to a railroad company, conveying land in Illinois to be used for railroad purposes, contained a covenant, which was to run with the land, imposing on the grantee the duty of switching cars between any industries on the line of the right of way conveyed for a specified sum, and on breach it should be liable to the injured party in an action at law or in equity, the benefits to inure to the industries to be located on the right of way conveyed. Held that, as between an owner of an industry on such right of way and the railroad company, there was privity of contract, but not of estate, and an action by such owner to enforce a covenant in regard to switching cars was not a suit in rem, or quasi in rem, involving title to land, but was in effect a suit for specific performance of a contract for personal services, and hence a circuit court in Missouri, having jurisdiction of the parties, had jurisdiction of the subject-matter of the action.

2. PROHIBITION (§ 28)—PROHIBITING EXERCISE OF JURISDICTION OF INFERIOR COURT— QUESTIONS AT ISSUE.

The court, on prohibition to prohibit the circuit court from exercising jurisdiction in a suit by a nonresident against domestic and foreign railroad companies owning and operating a line of road in a sister state under one system, to compel the companies to perform a switching contract, will not consider the merits of the action, and will not anticipate what decree the court will make, and it will not award the writ on the theory that the circuit court must, to enforce its decree, go into the sister state.

Prohibition by the State, on the relation of the Granite City & Madison Belt Line Railroad Company and others, against William B. Homer, Circuit Judge, to prohibit respondent from exercising any further jurisdiction in a pending suit. Denied.

Geo. T. Priest, for relators, cited the following authorities: Lienow v. Ellis, 6 Mass. 331; Clark v. Scudder, 6 Gray (Mass.) 122; Educational Soc. v. Varney, 54 N. H. 376; Bracket v. Alvord, 5 Cow. (N. Y.) 18; White v. Sanborn, 6 N. H. 220; New York v. Dawson, 2 Johns. Cas. (N. Y.) 335; Neill v. Owen, 3 Tex. 145; Eachus v. Trustees, 17 Ill. 534; Mason v. Warner, 31 Mo. 508; Cooley on Torts, p. 471; Livingston v. Jefferson, 1 Brock. 209, Fed. Cas. No. 8,411; Vt. Railroad v. Orcutt, 16 Gray (Mass.) 117; Gunther v. Dranbauer, 86 Md. 6, 38 Atl. 33; Morris v. Railroad Co., 78 Tex. 17, 14 S. W. 228, 9 L. R. A. 349, 22 Am. St. Rep. 17; Construction Co. v. Railroad, 135 Mass. 34, 46 Am. Rep. 439.

Seddon & Holland, for respondent, cited the following authorities: Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8,411; Henwood v. Cheeseman, 3 Serg. & R. (Pa.) 500; Dennick v. Railroad, 103 U. S. 11, 26 L. Ed. 439; Oliver v. Loye, 59 Miss. 320; Gregg v. Railroad, 48 Mo. App. 494; Tiedeman on Real Property, § 147; 1 Washburn on Real Property (6th Ed.) §§ 672, 674, 680; Wood on Landlord and Tenant, p. 672; Hurd v. Curtis, 19 Pick. (Mass.) 459; Patton v. Pitts, 80 Ala. 373; Mygatt v. Coe, 124 N. Y. 212, 26 N. E. 611, 11 L. R. A. 646; Pool v. Morris, 29 Ga. 374, 74 Am. Dec. 68; Boughton v. Harder, 46 App. Div. 352, 61 N. Y. Supp. 574; Wharton on Conflict of Laws, p. 661; Penn v. Baltimore, 1 Vesey, 444; Cranston v. Johnson, 3 Vesey, 170; Story on Conflict of Laws, §§ 544-545; Hart v. Sansom, 110 U. S. 151, 152, 3 Sup. Ct. 596, 28 L. Ed. 101; Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181; Kerr on Injunctions, 8; High on Injunctions, § 29; Olney v. Eaton, 66 Mo. 563; State v. Zachritz, 166 Mo. 307-313, 65 S. W. 999, 89 Am. St. Rep. 711; Castleman v. Castleman, 184 Mo. 432-438, 83 S. W. 757; Hewitt v. Price, 204 Mo. 31, 102 S. W. 647, 120 Am. St. Rep. 681; State v. Muench, 225 Mo. 210, 124 S. W. 1124; Mason v. Warner, 31 Mo 508; Little v. R. R., 65 Minn. 48, 67 N. W. 846, 33 L. R. A. 423, 60 Am. St. Rep. 421; Bliss, Code Pleading, § 284 et seq.; Railroad v. Mahoney, 42 Mo. 467; University v. Joslyn, 21 Vt. 52-59; Tillotson v. Prichard, 60 Vt. 94, 14 Atl. 302, 308, 6 Am. St. Rep. 95; Archibald v. Railroad, 66 Miss. 424, 6 South. 238; Railroad v. Brown, 29 Neb. 492, 46 N. W. 42; Congleton v. Pattison, 10 East, 138; Coughlin v. Barker, 46 Mo. App. 54; Tulk v. Moxhay, 2 Phil. Chancery, 774; Hurd v. Curtis, 19 Pick. (Mass.) 459; Kirklin v. Atlas (Tenn. Ch. App.) 60 S. W. 149; Butterfield v. Nogales, 9 Ariz. 212, 80 Pac. 345; Noble v. Grandin, 125 Mich. 383, 84 N. W. 465; 6 Thompson on Corporations (1895) § 7904; Limerick v. Howard, 71 N. H. 13, 51 Atl. 641, 93 Am. St. Rep. 489; Burdict v. Railroad, 123 Mo. 221, 27 S. W. 453, 26 L. R. A. 384, 45 Am. St. Rep. 528.

Statement.

REYNOLDS, P. J.

In an amended petition, filed in the circuit court of the city of St. Louis, the National Enameling & Stamping Company, a corporation, suing the Granite City & Madison Belt Line Railroad Company, hereafter called the Belt Line or Belt Line Company, the Madison, Illinois & St. Louis Railroad Company, the St. Louis Merchants Bridge Terminal Railway Company, and the Terminal Railroad Association of St. Louis, it is alleged that while defendants are organized as separate corporations, they have in fact constituted and been operated as one system prior to December 15, 1900, and ever since; that throughout that time all of the defendant corporations have been owned and controlled—while existing as separate entities only in name—as and under the one system; that in June, 1900, defendant, Terminal Railroad Association of St. Louis, acquired, and still owns, all the stock of the Belt Line Railroad Company; that prior to said time the St. Louis Merchants Bridge Terminal Railway Company had acquired, and still owns, all of the stock of the Madison, Illinois & St. Louis Railway Company, and that prior to that time, the Terminal Railroad Association of St. Louis had acquired, and still holds, a majority of the stock of the St. Louis Merchants Bridge Terminal Railway Company, and that throughout that period the affairs and policies of all of those companies have been determined and controlled by the directors of the Terminal Railroad Association of St. Louis who have, at all times, operated the properties in the interest of that system, and for the use and benefit thereof. And plaintiff states that ever since the 18th day of June, 1911, each of these corporations has been a portion of, and has been operated as a part of a system of terminals owned and controlled by the St. Louis Merchants Bridge Terminal Railway Company, Madison, Illinois & St. Louis Railway Company, Terminal Railroad Association of St. Louis, and the Granite City & Madison Belt Line Railroad Company; that throughout that period none of these corporations have been operated as a separate entity, but that the affairs of all have been directed and controlled by and for the benefit of that system. It is further alleged that F. G. Niedringhaus and others, as trustees, had by warranty deed of date September 15, 1900, conveyed to the Belt Line Company, certain tracts or strips of land in Granite City, Illinois, and certain rights in and easements upon certain tracts or strips of land in that city, to be used for railroad purposes. Describing the property, it is averred that on December 21, 1908, these trustees were also the owners of certain strips of land also located in said Granite City and, describing them; that on December 21, 1898, these trustees had entered into an agreement with the American Steel Foundry Company, by which agreement the trustees conveyed the last above described tracts of land to the last named company, and that company, for a valuable consideration, obligated itself, its successors and assigns to construct a railroad track or tracks upon the strip of land described, and that the trustees reserved to themselves in and by said deed, and the American Steel Foundry Company, for a valuable consideration, granted to the trustees, their successors and assigns the perpetual right to use any railroad track built on the strip of land jointly with the American Steel Foundry Company; that by that deed the American Steel Foundry Company did further agree to build, and long prior to September 15, 1900, built tracks upon the strips of land, which tracks the trustees at the time of the execution of the deed of September 15th had a right to use under the covenants and agreements set out in the deed of December 21st. It is further averred that by the deed of September 15, 1900, the trustees had conveyed and granted to the defendant Belt Line Company all the rights, title and interests secured to the trustees by the deed and contract of agreement between the trustees and the American Steel Foundry Company; that by the deed of September 15, 1900, the trustees conveyed, assigned and transferred to the Belt Line Company, its successors and assigns, the perpetual right to use the track so built by the American Steel Foundry Company on the tracts of land so conveyed in the agreement entered into between the trustees and the American Steel Foundry Company, it being averred that the strips of land so conveyed by the deed of September 15th constituted what is termed in that deed the line of the Belt Line Company in Granite City. It is further averred that the last named company accepted the deed and for a good and valuable consideration agreed to fully and faithfully carry out all the agreements and covenants in the deed contained and imposed upon it, and further agreed that all the agreements and covenants in the deed should be binding not only upon the Belt Line Company but upon its successors, lessees and assigns. It is further averred that by the deed of December 15th, the Belt Line Company agreed to operate its line, including the lands, easements, switches, spurs and turnouts previously belonging to it or acquired by...