The State ex rel. Rutledge v. Public Service Commission

• Decision Date: 20 December 1926
• Docket Number: 26913
• Parties: The State ex rel. W. H. Rutledge and G. F. Snyder v. Public Service Commission, Appellants
• Court: Missouri Supreme Court

289 S.W. 785

316 Mo. 233

The State ex rel. W. H. Rutledge and G. F. Snyder v. Public Service Commission, Appellants

No. 26913

Supreme Court of Missouri

December 20, 1926

Appeal from Cape Girardean Circuit Court; Hon. Frank Kelly Judge.

Reversed and remanded.

James F. Green for appellant.

(1) The Public Service Commission, in making orders abolishing grade crossings, is in the exercise of the police power of the State in the interest of public safety. Railroad v Bristol, 151 U.S. 567; Erie Railroad v. Utility Comm., 254 U.S. 394; 2 Elliot on Railroads, p. 153; Wabash Railroad v. De France, 167 U.S. 88; Railroad v. Nebraska, 170 U.S. 57. (2) Sec. 10459 R. S. 1919, gives the Public Service Commission exclusive authority in the matter of crossings of railroads and the right to alter or abolish grade crossings when deemed necessary by the Commission. Such power has been uniformly exercised by the Commission. (3) An individual cannot acquire title by adverse possession of a railroad right of way; neither can he, by mere acquiescence on the part of the railroad company acquire a property right in a railroad grade crossing. Railroad v. Tottman, 149 Mo. 657; Laddonia v. Day, 265 Mo. 383; Baker v. Railroad, 183 Mo. 312. (4) The circuit court rendered judgment against the railroad company, which was not a party to the proceedings in that court, requiring the restoration of a crossing which had been removed in obedience to a former order of the Commission. The action of the court was, therefore, the taking of the company's property without due process of law, in violation of the Fourteenth Amendment to the Federal Constitution. (5) The trial court was not authorized to substitute its judgment for that of the Public Service Commission. Sec. 10522, R. S. 1919; State ex rel. v. Pub. Serv. Comm., 272 S.W. 963.

D. D. McDonald and J. P. Painter for Public Service Commission.

(1) Courts, on reviewing orders of Public Service Commission, cannot replace its orders with others of their own, or even modify them, since the court cannot substitute its judgment for that of the Commission. Queens Gas Co. v. McCall, 219 N.Y. 84, 245 U.S. 345. (2) In a proceeding for review of an order of the Commission, the circuit court shall enter judgment either affirming or setting aside the order of the Commission under review, or remand the cause for further action. Sec. 10522, R. S. 1919. (3) The Commission not having jurisdiction to grant the relief requested in respondent's petition, its action in dismissing the application was proper. Kansas City v. Ry. Co., 229 S.W. 771; State ex rel. v. Pub. Serv. Comm., 275 Mo. 210; Sec. 10858, R. S. 1919. (4) The claim of special and peculiar interest of respondents based upon adverse possession and user raises a legal question over which the Commission has no jurisdiction. Han. & St. J. Ry. Co. v. Totman, 149 Mo. 657; Laddonia v. Day, 265 Mo. 383; Railroad v. Baker, 183 Mo. 312. (5) To invoke the jurisdiction of the Commission, powers must be such as will affect public interest rather than private rights. State ex rel. Tel. Co. v. Pub. Serv. Comm., 272 Mo. 627.

Spradling & Dalton for respondents.

(1) The Public Service Commission had exclusive jurisdiction to hear the complaint with reference to the maintenance of the public crossing mentioned in the complaint. The circuit court properly reversed and set aside the order of the Commission dismissing the complaint on the ground that it was without jurisdiction. Section 10459, R. S. 1919. (2) The public crossing which did exist at the point in controversy continued to exist and was in existence at the time of the filing of the complaint by respondents. Neither the order in Case 3782 nor the removal of the planking at the point in controversy affected the public crossing on the public highway, nor the rights of these respondents. Applegate v. Director Gen. of Railroads, 226 S.W. 628; In re Twenty-third Street Traffic Way, 214 S.W. 109; Rude v. St. Louis, 93 Mo. 408; Autenrieth v. Railway, 36 Mo.App. 254; Putnam v. Railroad, 182 Mass. 351. (3) The Legislature itself could not deprive respondents of their special and peculiar property right in this public crossing, to-wit, the right of ingress and egress, without compensation and due process of law, and of course the Commission could not do so. Secs. 30 and 21, art. 2, Mo. Constitution; Press v. Penny & Gentles, 242 Mo. 98; Gorman v. Railroad, 255 Mo. 482; Versterg v. Railroad, 250 Mo. 61; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560. (4) Abutting owners have rights of easement and access to their property over a railroad right of way in a public street or highway without acquiring those rights by adverse possession from the railroad and the railroad's right is subject to the right of the public in the highway. Jackson v. Railroad, 189 S.W. 383; Torrance v. Pryor, 210 S.W. 432; Knapp, Stout & Co., v. Railroad, 126 Mo. 26; Esler v. Railroad, 109 Mo.App. 580; Kennayde v. Railroad, 45 Mo. 255; Lockwood v. Railroad, 122 Mo. 86; Sherlock v. Railroad, 142 Mo. 172.

OPINION

White, J.

The appeal is from a judgment of the Circuit Court of Cape Girardeau County, by which judgment that court set aside an order of the Public Service Commission entered in Case No. 4269, refusing to restore a former railroad crossing in the town of Delta, a village of about two hundred inhabitants, in Cape Girardeau County.

The railroad at that point runs almost north and south, the greater part of the village being on the west side of the track. In 1923 the authorities of the village presented to the Public Service Commission an application to have a grade crossing established over the right of way of the railroad company at McKinley Street. The purpose of the proposed crossing was to enable persons living east of the railroad to cross over to that part of the village on the west, through which a highway ran approximately parallel with the railroad tracks. That proceeding was known as Case No. 3782. There was already a crossing over the right of way and railroad track, 504 feet north of McKinley Street. The relators here, W. H. Rutledge and G. F. Snyder, and one A. W. Bohnstedt all owned property and lived east of the railroad track and had access to their homes by that crossing. The property of Rutledge lay just outside the village limits, while that of Snyder and that of Bohnstedt lay within the village limits. A road extended along between their properties and the railroad tracks. It was a blind alley, had no outlet to McKinley Street, but connected with the crossing over the railroad tracks which led into the highway on the west side of the tracks. The evidence showed there was no other means of ingress and egress. The evidence further showed its use as a public crossing for a period of thirty-five years. For thirty years Rutledge had lived there and used it, and Snyder had used it for only a few years.

On the hearing of Case No. 3782, the Commission found that the crossing 504 feet north of the proposed crossing over McKinley Street would be of no practical use after the construction of the McKinley Street crossing, and ordered it discontinued. The report of the Commission, filed October 13, 1923, contained this finding:

"That said crossing 504 feet north was not a public crossing, there being no street whatever leading to it, and that the same is not recognized by the said village as a public crossing, according to the testimony of the mayor and one of its aldermen. That so far as the village was concerned the same could be abandoned, and should be, as it was not a crossing where any public road or street could be used in reaching it."

In pursuance of that order of the Commission, in November, 1926, the railroad company took up and removed the planks of the crossing. The evidence showed that the relators in this case afterwards did use it by "bumping the rails."

From the answer of the railroad company it further appears that in September, 1924, the village of Delta filed an application before the Commission in a case known as No. 4099, seeking to reestablish the grade crossing thus removed. But the Commission, deeming the matter involved in that proceeding fully determined in Case No. 3782, dismissed the complaint and refused to make the order.

The relators here first filed a suit in the Circuit Court of Cape Girardeau County seeking to enjoin the railroad company from removing and obstructing the crossing under consideration, and that injunction proceeding was dismissed by the circuit court on the ground that jurisdiction of public crossings was within the Public Service Commission. The relators then filed their complaint in this case, No. 4269, before the Commission, November 26, 1924, asking the Commission to order the Missouri Pacific Railroad Company to restore the crossing to its original condition as it existed before November, 1924. In their complaint the relators alleged that the crossing 504 feet north of McKinley Street, as a public crossing had been in open, continuous, adverse and notorious use for a period of thirty-five years, and during that period there had been no effort by defendant to prevent or question the use of the crossing by complainants and their grantors, or by the public; that the removal of said crossing and obstruction of the use of the same by the defendant entailed a special and peculiar injury to the complainants (relators here) in that it diminished the value of their real estate and destroyed the only means by which they could reach the public highway lying west of said railroad, and obstructed the only means of ingress and egress of their property.

Evidence was taken, as stated, which supported the allegation of the petition on all questions of fact alleged.

The Commission, after...