Stevens v. St. Louis M. B. T. Ry. Co.

• Decision Date: 14 November 1899
• Citation: 152 Mo. 212,53 S.W. 1066
• Parties: STEVENS et al. v. ST. LOUIS M. B. T. RY. CO.
• Court: Missouri Supreme Court

53 S.W. 1066

152 Mo. 212

STEVENS et al. v. ST. LOUIS M. B. T. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 14, 1899.

RAILROADS — EMINENT DOMAIN — ADDITIONAL SERVITUDE.

1. Where land is condemned for depot purposes, but is not so used, and the railroad company afterwards, in compromise of a suit by another railroad company to condemn the same land for its depot purposes, transfers to such company the right to a joint use with the former company of tracks, etc., to be constructed thereon, the same to be the property of the former company, such transfer does not create a new servitude, in respect of which the owner of the fee is entitled to further compensation, under Rev. St. 1889, § 2742, which provides that, where lands are condemned for depot purposes, any other railroad company shall have the right to use said depot ground for depot purposes; and, if said two companies cannot agree upon the compensation, or the manner of such use, the same shall be determined by commissioners, as provided by law for the condemnation of land for railroad purposes.

2. Rev. St. 1889, § 2742, which provides that, where lands are condemned for depot purposes, "any other railroad company shall have the right to use said depot ground for depot purposes, with the necessary buildings, turnouts, sidings, switches, and other conveniences in furtherance of said purpose," authorizes not only the construction of union depots, but separate depots, together with the sidings, switches, and other conveniences in furtherance of such purpose.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by Charles D. Stevens and others, as trustees under the will of Patrick N. Dillon, deceased, against the St. Louis Merchants' Bridge Terminal Railway Company. Plaintiffs' bill was dismissed, and they appeal. Affirmed.

This suit was commenced in the circuit court of the city of St. Louis to enjoin the terminal railway company from using the property in question for depot purposes and the construction of the necessary turnouts, sidings, switches, and tracks for the purpose. The plaintiffs' petition alleges, in substance, that the property in question was formerly owned by the Dillon estate; that the plaintiffs are the trustees under the will of Patrick N. Dillon, deceased, and as such vested with the title and right of possession of said property; that while so owned the St. Louis & San Francisco Railway Company, a corporation organized under the laws of this state, by proceedings in the circuit court of St. Louis, duly condemned, in the usual way, said property for depot purposes, and thereupon took possession of the property so condemned, and located its depot grounds, erected its depot, constructed its tracks, switches, and turnouts upon a portion of the land so condemned; that none of these terminal facilities are located upon the strip of ground in question, and that the latter has never used the property so condemned for any purpose whatever, but allowed the same to remain vacant and unoccupied until a short time before the commencement of this suit, when, it is alleged, an arrangement was made between the terminal railway company and the St. Louis & San Francisco Railway Company whereby, without the consent of the plaintiffs, the latter transferred all its right, title, and interest in and to the property in question to the defendant; that in pursuance of such arrangement the terminal railway company, before the commencement of this suit, was proceeding to lay its tracks and switch yards over said premises for its use and benefit in connection with its terminal system, which said use, it is alleged, was not involved in the original condemnation of the said property by the St. Louis & San Francisco Railway Company; that the value of the property so wrongfully appropriated by the defendant company is $100,000; and praying that defendant be enjoined from laying its tracks and using said premises for such purposes. Defendant, for its answer, denied that plaintiffs, as trustees or otherwise, were invested with the title or right of possession of said property; admitted that it is a railroad corporation organized under the laws of this state, but denied that it contemplated constructing its tracks over said property, except in virtue of a contract with the St. Louis & San Francisco Railway Company, hereinafter set forth. The answer admitted that, in pursuance of the contract with the latter company, and with the permission and at the request of said company, it had done some grading, and partially laid one track, on a portion of the said property; and denied that plaintiffs ever objected to the construction by defendant of tracks on said property, or that they have a right, either in law or in equity, so to do. The answer further averred that in April, 1886, the St. Louis & San Francisco Railway Company, by appropriate proceedings in the circuit court of the city of St. Louis against the plaintiffs and others, condemned the land described in the plaintiffs' petition for depot purposes; and that it was in said suit decreed by said court that all the right, title, interest, and estate of the plaintiffs therein be condemned and appropriated to the use of the St. Louis & San Francisco Railway Company for depot purposes; and by said decree all the right, title, interest, and estate of plaintiffs in and to the real estate in question was thereby devested, and duly vested in the latter company for depot purposes; and the plaintiffs were awarded judgment for the sum of $105,000, which was duly paid by the St. Louis & San Francisco Railway Company, and thereupon the latter took possession of said premises. It is further averred that the grading and laying down of track charged in the petition was done at the request of and as and for the St. Louis & San Francisco Railway Company, under an agreement between the latter company and the defendant whereby it was agreed that the defendant should cause said track to be laid, and, when so laid, it should be the property of the St. Louis & San Francisco Railway Company, but that defendant should have the use thereof jointly with the St. Louis & San Francisco. It was also averred by the answer that at the request and as and for the St. Louis & San Francisco Railway Company, under an agreement between the said last-named company and the defendant, wherein it was stipulated that the St. Louis & San Francisco Railway Company should cause said tracks to be laid, and, when so laid, they should be the property of the latter company, but that the defendant should have the use thereof jointly with the St. Louis & San Francisco, the defendant is making preparations to construct and is constructing railroad tracks over said ground to be used by the St. Louis & San Francisco Railway Company, with a right, also, of a joint...