Swinhart v. St. Louis & S. Ry. Co.

• Decision Date: 27 November 1907
• Citation: 105 S.W. 1043,207 Mo. 423
• Parties: SWINHART et al. v. ST. LOUIS & S. RY. CO.
• Court: Missouri Supreme Court

105 S.W. 1043

207 Mo. 423

SWINHART et al. v. ST. LOUIS & S. RY. CO.

Supreme Court of Missouri. Division No. 1.

November 27, 1907.

1. EVIDENCE — BURDEN OF PROOF — NEGATIVE AVERMENTS.

Const. art. 12, § 20 [Ann. St. 1906, p. 309], provides that the Legislature shall not grant the right to construct a street railway in a public highway without first acquiring the consent of the local authorities. Rev. St. 1899, § 1035 [Ann. St. 1906, p. 898], provides that nothing therein shall be construed to authorize the construction of a railroad upon any street or road without the assent of the corporate authorities. Held that, in an action to enjoin the operation of a street railway in a highway, plaintiff need not prove the negative averment that the county court having control of the street had not consented to the construction of the railway, but such consent must be shown by defendant, as without such consent it was a mere trespasser.

2. STREET RAILROADS — RIGHTS IN STREETS — CONSENT OF HIGHWAY OFFICERS.

The assent of the county court to the use of a highway by a street railway company is in the nature of a license, and must be shown by one claiming its protection.

3. EVIDENCE — NEGATIVE AVERMENTS.

Though ordinarily the burden is upon plaintiff to make out his case, where negative averments are required in stating his case, and their proof lies peculiarly within the knowledge of defendant, the averments will be taken as true, unless defendant disproves them.

4. STREET RAILROADS — OCCUPATION OF STREET — RIGHTS OF ABUTTING OWNERS — REMEDY AT LAW — INJUNCTION.

Where the manner of construction of a street railway and the use to which it is put destroys the practical usefulness of the street to abutting owners, they have no adequate remedy at law and may obtain relief by injunction, especially where the occupation of the street is unlawful.

5. APPEAL — OBJECTIONS NOT RAISED BELOW — PLEADING.

Estoppel in pais is an affirmative defense and must be pleaded; but, where the case is tried as if the plea of estoppel was in the case, the question of pleading cannot be raised on appeal.

6. STREET RAILROADS — RIGHTS OF ABUTTING OWNERS — ESTOPPEL.

The mere fact that abutting owners remain silent for two years while a street railway company unlawfully constructs and operates a railroad in a street does not estop them from disturbing the company's possession.

7. SAME — RIGHTS IN STREETS — INJUNCTION — DECREE — MODIFICATION.

Where a street railway company was enjoined from operating a railroad in a street because the necessary consent of the county court had not been obtained, it was not error to refuse to modify the decree so as to allow the company permission to use one side of the street, instead of the center, since such modification would be granting them a right which they could obtain only from the county court.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Harry W. Swinhart and others against the St. Louis & Suburban Railway Company. Decree for plaintiffs, and defendant appeals. Affirmed.

Boyle & Priest and T. M. Pierce, for appellants. Leverett Bell, for respondent.

GRAVES, J.

One could adopt the statement made of this case by counsel either for plaintiff or defendant, and not be far wrong. However, with a view to brevity, and to bring out one or two salient features a little more fully, we do not so do, but attempt the task ourselves. Plaintiffs are abutting property owners on the north side of Horton Place, shown to be a public thoroughfare, 60 feet in width. Horton Place extends over and across the corporate line separating St. Louis county and the city of St. Louis, and is therefore both in the city and county of St. Louis; but plaintiffs' property lies in the county of St. Louis. The real situation, with the location of the property, is best shown by the plat thereof which was introduced in evidence:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

From this plat and other evidence it appears that, prior to 1901, the defendant, a street railway company, had and still has its line of street railway running from the city of St. Louis to points in St. Louis county. Prior to 1901, the three plaintiffs owned lots 11 and 12 as indicated on the plat. In 1901, the defendant built a single track, near the crossing of Hodiamont avenue, up through Horton Place, to the Wabash Railroad tracks on the west. The defendant owned property on both sides of Horton Place for the purposes indicated and marked on this plat. This single track in Horton Place was not used for defendant's regular business of carrying passengers, but was used to reach the shops and car sheds owned by it, and in bringing cars and material thereto. This rendered Horton Place practically a car yard. In February, 1903, the shops of defendant were almost entirely destroyed by fire, and shortly thereafter work of bringing in material for the rebuilding of the shops began, and Horton Place, more than ever, became a car yard, on account of storing cars of material upon the street. June 2, 1903, these plaintiffs filed their bill in equity, wherein, among other things, is charged: "That all of said property is improved with dwelling houses erected by plaintiffs, fronting on said place, and occupied by plaintiffs and their tenants as places of residence, and that access of said property to Horton Place is an important element in its value. That the defendant is a railway corporation organized, created, and existing under the law of the state of Missouri, and is engaged in operating an electric railway in the city and county of St. Louis for the transportation of passengers. That Horton Place possesses a width of 60 feet. That after the plaintiffs had acquired the property aforesaid, the defendant, to wit, about the year 1901, without any authority of law and without permission of the county of St. Louis or state of Missouri, and against the protest and objection of the plaintiffs, proceeded to and did lay and construct a railway track along, in, and upon Horton Place aforesaid, in front of plaintiffs' said property, connecting the main line of the defendant in the city of St. Louis with the Wabash Railway at Vendome avenue in the county of St. Louis, and said defendant without any authority proceeded to erect poles in said street supporting electric wires, which it employs in moving cars upon said track, and the defendant has since and is now engaged in operating and switching and storing cars on said track, and the maintenance and operation of said track and wires and poles and cars in said Horton Place, as the same are now being pursued and carried on by the defendant, hinders and prevents the public and the plaintiffs from using the street, and excludes all vehicles from the street, and destroys the use of the street as a public thoroughfare; all of which under the law of the land is without legal justification or excuse. That by the construction, maintenance, and operation of said track on Horton Place, between the points named, the property above mentioned owned by the plaintiffs is greatly depreciated and damaged in its selling and rental value, and will hereafter be greatly diminished and lessened, and that the damages that have and will accrue to the plaintiffs by reason of the matters aforesaid differ in degree and kind from those which have and will result to other members of the community or to the public at large from the same causes. Plaintiffs pray that the defendant, its officers, agents, and servants, may be forever enjoined from operating said track with cars, and that they be enjoined and compelled by the order of this court to remove said track and poles and wires from Horton Place between the points named, and that plaintiffs may have such other relief as they are entitled to and their costs in this behalf expended."

The answer of defendant was a general denial. The evidence disclosed that there were dwelling houses upon each of the lots designated in the plat by number and name, being some four in addition to the plaintiffs. It also showed that the only practical way in and out of Horton Place was at the east. That the way over and across the Wabash Railroad tracks was impracticable and not then in use. That the street railway track was constructed on or about the center of Horton Place, by putting the ties upon the surface of the ground, and then the rails thereupon. That by such construction it was difficult to cross this track. That cars, both street railway and some from the Wabash Railroad, were continuously being stored and permitted to stand upon this track. There was also evidence of the depreciation of the property of plaintiffs in value by reason of the fact that this car line was maintained there and used in the way it was used, as was there also evidence of the great inconvenience suffered by the plaintiffs and other occupants of the residence property on the north side of Horton Place.

After hearing the evidence, the trial court entered a decree for plaintiffs in this language: "This cause coming on to be heard on the pleadings and the evidence adduced, and being submitted to the court, and the court being now fully advised of and concerning the same, the court doth find and determine the issues herein in favor of the plaintiffs, and doth thereupon order, adjudge, and decree that the defendant be enjoined and restrained from operating the railway track in Horton Place, in St. Louis county, Mo., between Vendome avenue on the west and the county line on the east, with cars, and from standing and switching and storing cars on said track between said points; and that within 90 days from the date hereof the said defendant is enjoined and commanded to remove from said Horton Place, between the points named, the said railway track and all poles and electric wires placed, employed, or adapted to the purpose of moving cars thereon; and, further, that the plaintiffs recover...