The St. Louis, Hannibal and Kansas City Railway Company v. The Hannibal Union Depot Company
| Decision Date | 26 November 1894 |
| Citation | 28 S.W. 483,125 Mo. 82 |
| Parties | The St. Louis, Hannibal and Kansas City Railway Company v. The Hannibal Union Depot Company et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Hannibal Court of Common Pleas. -- Hon. Thomas H. Bacon Judge.
Affirmed.
George A. Mahan for appellants.
(1) The purpose and the result of this proceeding is to take away from and deprive appellant of a part of its property and franchise, and to appropriate the same to the exclusive use of respondent. This can not be done, as there is no authority of law for it. Railroad v. Railroad, 118 Mo. 615; Appeal of Railroad, 122 Pa. St. 511; Railroad v Williamson, 91 N.Y. 552; Hickok v. Hine, 23 Ohio St. 423; Railroad v. Railroad, 81 Ill. 523; Union Depot Co. v. St. Paul, 30 Minn. 359; Railroad v. Railroad, 124 Mass. 368; Cake v Railroad, 87 Pa. St. 307; Pennsylvania Railroad's Appeal, 93 Pa. St. 150; Railroad v. Brownell, 24 N.Y. 351; Railroad v. Board, 57 F. 945; Railroad v. Railroad, 110 Mo. 510. (2) Neither the charter nor the profile map of respondent shows any authority in respondent to condemn the land in question. The charter only shows that its termini are at Oakwood and Hannibal, but does not locate any point in Hannibal. Nothing can be determined from the map. The right of condemnation as applied to railroad crossing cases is universally based upon an express statute, section 2226, Revised Statutes, 1889. The right to condemn union depot grounds has never been conferred. The general law, section 2741, Revised Statutes, 1889, does not confer upon respondent that right. There is no express statutory authority. Union Depot Co. v. St. Paul, 30 Minn. 359; Railroad v. Railroad, 118 Mass. 391; Matter of Buffalo, 68 N.Y. 167; Railroad v. North, 103 Ind. 486; Matter of Central Park, 63 Barb. 282; Railroad v. Dayton, 23 Ohio St. 510; Railroad v. Commissioners, 118 Mass. 561. (3) This amount of land seems to be indispensable now and for the future demands of appellants' business. Appellant is not necessarily limited to a use of any portion of its depot grounds, without any modification of its present arrangement. It is entitled to make any changes in the tracks, sheds, buildings or otherwise, which may better facilitate the use of the premises for depot purposes. Railroad v. Faribault, 23 Minn. 169; Union Depot v. St. Paul, 30 Minn. 359. (4) The standing of passenger trains on the main tracks to load and unload passengers, and the passage of main line trains over such tracks are necessarily inconsistent. Two public uses, the one requiring control by respondent for the free passage of its main line trains, the other control by appellant for such occupancy as its business requires. Such contradictory and impossible uses of the same land for public purposes will not be permitted. Rex v. Russell, 6 East, 427; People v. Cunningham, 5 Denio, 530; Angell on Highways, sec. 227; Hannibal v. Railroad, 49 Mo. 481. It is not material that the land in question was acquired by purchase instead of by regular condemnation proceedings. Yates v. Van de Bogert, 57 N.Y. 526. (5) It is necessary for the respondent to make this allegation in its petition, and show at the hearing that there will be no material interference in the taking of property for public use. Every demand and requirement of the statute must be strictly followed and affirmatively shown. St. Louis v. Gleason, 93 Mo. 33; Railroad v. Town Site Co., 103 Mo. 462; Anderson v. Pemberton, 89 Mo. 65. (6) There is no necessity for the condemnation of the strip of land in question. Even if it should be conceded that the terminus of respondents' road was north of the union depot grounds, all the evidence shows that respondent could have condemned around the union depot grounds, there was no necessity for crossing the same, and that under the facts in this case, respondent could not legally condemn the strip of ground and the court erred in permitting it. Railroad v. Railroad, 39 Am. and Eng. R. R. Cases, 6, and note at page 15; Appeal of Railroad, 122 Pa. St. 511. (7) A careful reading of the instructions of the court to the commissioners, on the measure of damages, will show that the court confined the commissioners, in assessing damages, to the tract east of Bear creek, and to increased exposure of buildings on other tract to loss or damage by fire, and thus prevented the commissioners from assessing damages to the entire lot or tract. There was but one cut-lot 41. Under repeated decisions of this court this is error. Railroad v. Story, 96 Mo. 611; Railroad v. Calkins, 90 Mo. 538; Railroad v. Waldo, 70 Mo. 629; Railroad v. Ridge, 57 Mo. 599; Railroad v. Fowler, 113 Mo. 459. (8) The court further erred in instructing the commissioners on the measure of damages, by failing to tell the commissioners to base the damages upon the market "value of the land to be appropriated, which is to be assessed with reference to what it is worth for sale, in view of the uses to which it may be put." Railroad v. Porter, 112 Mo. 368; Railroad v. McGrew, 104 Mo. 282; Boone Co v. Patterson, 98 U.S. 408; note to Railroad v. Waldron, 88 Am. Dec. 113.
James P. Wood for respondent.
(1) The taking of the property of one corporation and subjecting it to a public use by another corporation is, by the terms of section 2741, Revised Statutes, 1889, "limited to such use as shall not materially interfere with the use of which, by law, the corporation holding the same is authorized to put said lines." Railroad v. Railroad, 35 Mich. 263; Railroad v. Railroad, 111 Mass. 125; Toll Bridge v. Railroad, 17 Conn. 454. (2) A finding of no "material interference" is implied from the course of the proceeding itself. Hannibal v. Railroad, 49 Mo. 480. (3) The rights of respondent in building its road and the acquisition of its right of way over appellant's land is by no means exclusive. Respondent accepted its charter and franchises, and builds, owns and uses its tracks, subject at all times to the power of the state to authorize the construction of other railroads across its tracks whenever the public welfare may demand it. Railroad v. Railroad, 118 Mo. 613. (4) Where condemnation of property is governed by general laws, no special legislative enactment is necessary to authorize the taking by one corporation the property of another, not used or absolutely necessary to the enjoyment of the franchise of such prior holder. Mills on Em. Dom., sec. 47, and cases cited. (5) The evidence conclusively shows that the land in question is not used, and that it is not actually necessary for such depot purposes. (6) The petition is sufficient. (7) The instructions of the court to the commissioners, on the measure of damages, did not confine them to the tract south of Bear creek. Under the instructions the commissioners were directed to assess "the damage, if any, to that portion of the lot not sought to be appropriated," and the tract north of Bear creek as well as the tract south of Bear creek was included in said instructions. No damage was allowed to appellant for the tract north of Bear creek. And it would be difficult to determine how any damage could result to the tract north of Bear creek. Appellants did not file any exceptions to the report, based on a failure to assess damage to the tract north of Bear creek; not having pointed this matter out by specific objections either by exception or in the motion for a new trial, it can not be raised for the first time in the appellate court. Hornblower v. Crandall, 78 Mo. 581; R. S. 1889, sec. 2085.
The proceedings were to condemn for a railway track of defendant's railroad a part of the land acquired and held by the defendant for union depot purposes in the city of Hannibal.
It appears from the evidence that the defendant was incorporated under the general laws of the state, (R. S. 1879, sec. 826; R. S. 1889, sec. 2667) for the purpose of constructing, establishing and maintaining a union station for passengers in the city of Hannibal; that for the purposes of its incorporation it acquired a tract of land in the eastern portion of the city. The greater portion of this land lay on the north side of Bear creek, a stream flowing easterly, and from fifty to seventy feet in width. A portion of the land was described as out lot 41, which was acquired by purchase. This lot was triangular in shape, the north side being substantially coincident with the north bank of the creek. The other two sides crossed the creek and came near uniting at Monroe street about one hundred feet south of the creek. The point of the triangle was cut off by Monroe street thus making the south part of the lot front sixty-three feet on Monroe street. This lot then covered a small portion of land north of Bear creek, the whole width of that stream and that south of it as above described. The bulk of defendant's station grounds lay north of the creek, the track of the M. K. & T. R'y Co. lying between these grounds and the creek.
On the grounds north of the creek the defendant had constructed and maintained a large, convenient and expensive depot building with extensive sheds, with a number of railroad tracks running into them, from the northeast, also one or more tracks on the north side of the building. The cost of the entire property was estimated at $ 160,000. No part of the improvements were on the land south of the creek.
It was shown that Hannibal was a city of about fifteen thousand inhabitants; that six or seven railroads centered there, all of which used this depot for receiving and unloading passengers, and that from forty-eight to fifty passenger trains come into the depot daily.
The evidence of the defendant was to the effect that Bear creek was a small stream generally dry, and...
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