The Chicago & Alton Railroad Company v. The Kansas City, Independence & Park Railway Company
| Decision Date | 06 June 1892 |
| Citation | 19 S.W. 826,110 Mo. 510 |
| Parties | The Chicago & Alton Railroad Company et al., Plaintiffs in Error, v. The Kansas City, Independence & Park Railway Company et al |
| Court | Missouri Supreme Court |
Error to Jackson Circuit Court.
Reversed and remanded.
Gates & Wallace for plaintiffs in error.
The demurrers of the defendants admit the allegations of the petition, and, under the provisions of the code allowing any relief consistent with facts and the general prayer of the petition, the demurrers must be taken simply as denying the equity of the bill. Under the prayer the plaintiffs are entitled to any relief within the power of a court of equity which is called for by the facts stated in the bill. The right is plain and expressly given by the statute, and the violation of it is admitted by the defendants. That there must be a remedy for every wrong is a maxim of universal application. There is no remedy in any ordinary suit at law. Indeed, it was not claimed by the defendant's counsel that there was an adequate legal remedy. On the other hand the power of a court of equity to give redress in a variety of ways seems plain. Treat the acceptance of the award of the commissioners by the defendants, and their proceeding to put in their crossing as incurring an obligation to comply with its terms, and will not a court of equity enforce specific performance of the contract? The remedy by injunction is also applicable. R. S. 1879, sec. 2722; Bispham's Equity secs. 399, 400, et seq.; Mills on Eminent Domain, sec. 214; Lewis on Eminent Domain, secs. 643, 644; Young v Railroad, 28 Wis. 171; State ex rel. v Railroad, 86 Mo. 288; Carpenter v. Railroad, 24 N.J.Eq. 249; Railroad v. Railroad, 50 Vt. 452; Railroad v. Railroad, 4 Woods, 360.
Karnes, Holmes & Krauthoff for defendants in error.
(1) The clause in the award on which this action is founded is surplusage and void under the bill of rights, article 2, section 21, constitution, 1875. Section 2736, Revised Statutes, provides that the property-owner may "enforce payment of the award by execution." In this case, there being no peculiar benefits to the remainder of the railroad lands of plaintiffs in error, the constitution requires compensation in money. Dougherty v. Brown, 91 Mo. 26; Railroad v. County, 16 Wall. 667; Bigelow v. Railroad, 27 Wis. 478; Sedalia v. Railroad, 17 Mo.App. 105; 100 Mo. 419; 31 N.W. 281; 29 F. 728. (2) The cases referred to by plaintiffs in error are totally unlike the case at bar. None of them are founded on an award of commissioners. The text-books and authorities cited are simply on the general proposition as to the nature of injunctions, and throw no light whatever on this case. It is not alleged in the petition that the pile piers are insufficient, or that the defendant is maintaining an improper or insufficient structure over the railroad tracks of the plaintiffs in error.
The trial court sustained a demurrer to the petition in this case, and that ruling is now before us for review on a writ of error.
According to the averments of the petition, the Independence & Park Railway Company commenced proceeding against the present plaintiff to condemn a right of way over and across the plaintiff's road. Commissioners were duly appointed to assess compensation, who made their report on the fifteenth of July, 1887. The amount of damages allowed is not stated, but it is averred that the commissioners, by their report, "assessed the damages and determined the points and the manner of crossing as required by law, providing and determining that the said crossing should be over the tracks of the plaintiffs, with a clear span of twenty-two feet from the top of the rails to the chord of the bridge, with room underneath the same for two railroad tracks of the plaintiff, which room should be twenty-eight feet in the clear, measured at right angles to the track of the plaintiff, as then laid at the place of said crossing; that said crossing should consist of a good, substantial, standard, combination span bridge on temporary pile piers, such piers to be replaced in one year by stone masonry, and that said crossing should be constructed, and at all times thereafter maintained in a good condition and repair at the expense of the said Kansas City, Independence & Park Railway Company."
It is alleged further that the Independence & Park Railway Company constructed temporary pile piers and built its bridge thereon; that the other defendant, the Kansas City & Independence Rapid Transit Railway Company, has some interest in the subject of this suit; that the defendants operate a railroad over the bridge; that they have violated the report of the commissioners in this: that, although more than one year has elapsed since it was filed, the defendants have not replaced the temporary pile piers with stone masonry. Plaintiff prays for specific performance of the report, that defendants be enjoined from operating their road over the bridge until the temporary pile piers are replaced with stone masonry, and for other and further relief.
The statute, under which the commissioners were appointed, gives one railroad company the right to cross the road of any other company, and then provides: "And if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points and manner of such crossings and connections, the same shall be ascertained and determined by commissioners to be appointed by the...
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