The Kaw Valley Drainage District of Wyandotte County v. The Kansas City Southern Railway Company

• Decision Date: 11 May 1912
• Docket Number: 18,064. 18,065
• Citation: 87 Kan. 272,123 P. 991
• Parties: THE KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, Plaintiff, v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant. THE KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, Plaintiff, v. THE KANSAS CITY TERMINAL RAILWAY COMPANY, Defendant
• Court: Kansas Supreme Court

123 P. 991

87 Kan. 272

THE KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, Plaintiff, v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant.

THE KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, Plaintiff, v. THE KANSAS CITY TERMINAL RAILWAY COMPANY, Defendant

No. 18,064. No. 18,065

Supreme Court of Kansas

May 11, 1912

Decided January, 1912.

Original proceeding in mandamus.

SYLLABUS

SYLLABUS BY THE COURT.

1. MANDAMUS--Drainage District--Clearing Channel of River--Elevation of Railroad Bridges. The Kaw Valley Drainage District, in its work of clearing the channel of the Kansas river at and near its mouth and in prescribing the height of bridges over such stream, is exercising the police power of the state, and has the right to require railroad companies to elevate their bridges to correspond with the height of levees constructed by the board, its determination that such elevation is necessary being prima facie bona fide and valid.

2. MANDAMUS--Same. It is no defense to an action to compel such elevation that such requirement would entail upon the railroad companies large expense or force them into controversies with the city and other railroad companies respecting the raising of grades made necessary by such elevation. Their rights and franchises must be deemed to be held subject to the necessity of complying with all reasonable requirements which the legislature may make or authorize in the exercise of the police power of the state.

3. CONSTITUTIONAL LAW. Such requirement does not by reason of the consequent expense and difficulty amount to a violation of the contract, commerce, due process, or equal protection clause of the federal constitution.

4. FORMER AGREEMENT--Ultra Vires--No Defense. The plaintiff board, having no power to abrogate its authority by contract, is not bound to refrain from requiring such elevation by reason of an agreement in 1907 to treat a certain bridge of lower elevation as lawful and sufficient the party thus contracting with the board being required to know that such contract, if construed to prevent other and different requirements as conditions should demand them, was ultra vires.

5. PLANS--Approved by Federal Authorities. The plaintiff board can not compel the elevation of the bridges in question until reasonable plans therefor are approved by the proper federal authorities.

John S. Dawson, attorney-general, L. W. Keplinger, and C. W. Trickett, for the plaintiff.

Samuel W. Moore, O. L. Miller, Samuel W. Sawyer, and Cyrus Crane, for the defendants.

OPINION

WEST, J.:

The Kaw Valley Drainage District prays for a writ of mandamus against the Kansas City Southern Railway Company, compelling it to raise its bridge across the Kansas river six and five-tenths feet, and to remove its old bridge, superstructure, abutments, piers, piling and wreckage. The plaintiff alleges that the federal government established harbor lines along the river, which lines coincide substantially with those established by the plaintiff for a levee; that by statute the plaintiff is given authority to determine the height of the superstructure of all bridges crossing the river within the drainage district and to compel the raising of bridges accordingly; that the defendant owns a bridge across the river within the district; that on or about July 15, 1911, it was notified by the plaintiff to raise its bridge six and five-tenths feet and to remove the old bridge, superstructure, abutments, piers, piling and wreckage, but that it has failed, neglected and refused so to do.

The defendant answers that it is a railway corporation, and citizen of Missouri, engaged in interstate commence, its business being that of a switching company, moving cars received from other railroads, handling shipments of goods received from states other than Kansas, such railroads having no tracks connected with the industries to which such goods are assigned, and transferring cars loaded with such shipments from Kansas City, Mo., to other railways in Kansas and placing such cars for unloading at the various industries along the line of the defendant's road in Kansas, and taking such cars there loaded and transporting them to Kansas City, Mo.; that its tracks extend from the state of Missouri to and into Wyandotte county, and are laid across the bridge in question, the defendant having no other connection than its tracks across such bridge; that if such connection is destroyed or its use rendered unavailable, the line will be separated and its business as an interstate carrier destroyed, and the business of a large number of industries in Kansas greatly injured and in some cases destroyed; that if the bridge is raised as prayed for the defendant's business will be interrupted, its trains can not be transported across the river, and its line of road will be cut and all its interstate business effectually destroyed; that the present height of its tracks upon the bridge is such that any additional elevation will preclude the use of the bridge for trains except by the construction of another approach at either end several feet above the surface of the defendant's tracks; that such approaches extend across various public streets in Kansas City, Kan., not under the control of the defendant; that the defendant has no right, power or authority to raise its tracks upon such streets unless their grade is raised by order of the city; that a large amount of private property abutting upon such streets would be seriously and permanently damaged by the change of grade, and that the plaintiff has taken no steps to ascertain such damages or compensate the owners therefor; that the city refuses to change the grade; that the defendant's tracks on the east side of the bridge are intersected by the tracks of three other railroad companies, and if the bridge is raised as desired such tracks would be cut in two and rendered useless unless also raised by their owners, which such owners refuse to do, and that the plaintiff has made no arrangements to have the same done; that a compliance with the demand of the plaintiff would cost more than $ 30,000, and the destruction of the bridge for railway purposes would injure the defendant many hundred thousands of dollars; that the enforcement of the plaintiff's demand would deprive the defendant of its property without due process of law and deny it the equal protection of the law, and operate as a direct interference with and a prohibition of interstate commerce, as the defendant carries over its lines interstate freight in carload lots, and that the defendant has made application to the chief of engineers and secretary of war for approval of plans for rebuilding its bridge, which application is pending, and that such change can not be made without the consent of such officers. Except as specifically admitted, the answer denies all allegations of the alternative writ.

The plaintiff withdrew its reply and moved for judgment on the pleadings, and although in the brief there is a long detailed statement of alleged facts, we can only consider the case upon the allegations contained in the writ and in the answer and return. There is no allegation in the alternative writ when the federal government established the harbor lines, or when and in what manner the defendant constructed the present bridge, and no direct allegation as to any old bridge, abutment, piers, piling or wreckage. All we can ascertain from the face of the pleading is that at some time the federal government established harbor lines, which coincided substantially with the levee lines established by the plaintiff; that the defendant owns a bridge across the river, which it has refused to raise in accordance with the notice and request of the plaintiff. The allegation in the answer that the plaintiff has no power or authority to require the bridge to be raised as demanded is possibly based upon the act of March 3, 1899, which provides (30 U.S. Stat. at Large, ch. 425, § 9, p. 1151) that it shall not be lawful to construct any bridge over any navigable water of the United States until the consent of congress shall have been obtained and until the plans shall have been submitted to and approved by the chief engineer and secretary of war. The allegation of the answer that application for such approval has been made and is still pending is attempted to be met by the plaintiff's brief, which states that on June 24, 1910, the secretary of war ordered the defendant to do exactly what is now desired by the writ, but this allegation, not being contained in the pleadings, can not be considered.

The plaintiff also prays for a writ against the Kansas City Terminal Railway Company to require it to raise its bridge the allegations being practically identical with those already considered. To this the Terminal company, after denying all allegations not expressly admitted, avers that it is a Missouri railway corporation engaged in interstate commerce; that its tracks extend from Jackson county, Missouri, into and through Wyandotte county, Kansas, and other allegations similar to those already made by the Southern company; further, that the demand of the plaintiff is unreasonable, illegal and arbitrary, and would require either a total destruction of the defendant's business or necessitate wrongful and illegal acts upon the public streets of Kansas City, Kan. The answer further alleges that under a contract made on May 28, 1907, with the plaintiff, it was mutually agreed, as a compromise and settlement of their differences then in litigation, that the Terminal company would proceed to construct a permanent bridge in accordance with plans shown by a blue print attached to the contract, the plaintiff agreeing to such construction and declaring that when completed it...