Ver Steeg v. Wabash R. Co.

• Decision Date: 10 May 1913
• Citation: 250 Mo. 61,156 S.W. 689
• Parties: VER STEEG v. WABASH R. CO.
• Court: Missouri Supreme Court

156 S.W. 689

250 Mo. 61

VER STEEG v. WABASH R. CO.

Supreme Court of Missouri.

May 10, 1913.

1. ADVERSE POSSESSION (§ 44) — STREETS — CONTINUITY OF POSSESSION.

The lapse of 10 years after a railroad began operating trains in a street did not destroy the rights of abutting owners therein, even if such limitation were applicable, where during that time it ceased running trains, and its tracks became so covered and obscured by dirt that a casual observer would not notice them.

2. EMINENT DOMAIN (§ 106) — MUNICIPAL CORPORATIONS (§§ 680, 681) — RAILROADS (§ 75) — STREETS — RIGHTS OF ABUTTING OWNERS.

Neither the General Assembly nor municipal authorities have ever possessed the power to authorize the use of a public street in such manner as to destroy rights of ingress and egress to abutting property, without compensation to the owners.

3. EMINENT DOMAIN (§ 70) — COMPENSATION — NECESSITY.

A railroad did not acquire an irrevocable right to use a street, without compensation, by a franchise from the state to construct and operate a railroad thereon, where the road was not constructed until after the taking effect of a constitutional provision prohibiting the taking or injury of private property without compensation.

4. INJUNCTION (§§ 12, 113) — DEFENSES — LACHES — LACK OF INJURY.

An owner of property abutting on a street, knowing that a railroad company was, at considerable expense, constructing a freight depot which would be valueless if it could not run cars on such street, delayed for five months after the operation of trains thereon before bringing suit to enjoin their operation. The abutting property was used for manufacturing and storage purposes. At points thereon the sidewalks had been abolished. It did not appear that plaintiff could not get permission from the city to abolish the sidewalks or reduce their width in front of his property, and if this were done there would be sufficient room, notwithstanding the railroad tracks, for plaintiff's freight wagons to reach his property. Held that, because of laches, and because plaintiff was not greatly injured, an injunction to restrain the operation of the railroad would be denied, without prejudice to an action for damages.

5. EVIDENCE (§ 5) — JUDICIAL NOTICE — MATTERS OF COMMON KNOWLEDGE.

The court will take judicial notice of the well-known fact that there is not so much necessity for sidewalks, particularly wide sidewalks, in streets where the abutting property is used for manufacturing and storage purposes as on those devoted to residence or retail purposes.

6. RAILROADS (§ 79) — STREETS — RIGHTS OF ABUTTING OWNERS.

An owner of property abutting on a street is entitled to an injunction restraining a railroad company from allowing its trains or cars to remain or stand in front of his property, and from making and breaking up trains in such place so as to interfere with the passage of his wagons along the street.

7. EMINENT DOMAIN (§ 275) — GROUNDS — CONSTRUCTION OF RAILROAD TRACKS.

Where a railway company has constructed tracks over a person's premises without authority, and is about to construct another track over the same premises, also without authority, and without making compensation, its construction will be restrained, although the first tracks are completed and in operation.

Lamm, C. J., and Ferriss, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; R. M. Foster and Geo. H. Williams, Judges.

Action by Walter B. Ver Steeg against the Wabash Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed, with directions.

Action to enjoin defendant from operating a railroad in front of plaintiff's property in the city of St. Louis. From a judgment for defendant, plaintiff appeals.

Plaintiff owns real estate abutting on both sides of Collins street, between Carr and Biddle, in St. Louis city. Collins street runs north and south, and is only 40 feet wide where plaintiff's property abuts thereon. This property is improved, and is used by plaintiff's tenants for manufacturing and storage purposes. That part of the city where plaintiff's property is located is devoted almost exclusively to manufacturing purposes. In his petition plaintiff alleges that there is a sidewalk 8 feet wide on each side of Collins street, leaving a space only 24 feet wide from curb to curb; "that the defendant has constructed and laid down in said roadway of Collins street, between Biddle street and Carr street, and in front of said property of the plaintiff, a single railway track, but has not up to the present time commenced operating locomotives, cars, and trains thereon, but that it now threatens and proposes so to do, unless restrained by the process of this court; that the defendant is now engaged in laying and constructing a second railway track on the west half of the roadway of Collins street in front of the property of plaintiff, above described, and proposes and threatens, upon the completion of said second track, to operate locomotives, cars, and trains thereon, unless restrained, as aforesaid, by the process of this court;" that the construction and operation of said railway tracks, or either of them, will exclude all vehicles and other traffic from that part of Collins street in front of plaintiff's property and greatly depreciate the value of said property for sale or rental purposes; wherefore plaintiff demands that defendant be enjoined "from constructing, maintaining, and operating its said railway tracks on Collins street, between Carr and Biddle streets, and for all other proper relief."

In its answer to this petition, defendant admits that it is operating a through line of railroad in front of plaintiff's property on Collins street, and, as a bar to plaintiff's action, alleges that it has been operating said railroad continuously for a period of more than 10 years. Defendant further admits that at the time this suit was instituted it was engaged in laying a second railway track, or "turnout," in front of plaintiff's property, but asserts that since the filing of said action defendant has removed its second track, or "turnout," and does not intend to operate the same hereafter. Defendant denies that the operation of its single track of through railroad will exclude vehicles and the public generally from Collins street, or depreciate the value of plaintiff's property.

As a further defense, defendant contends that it is the purchaser and owner of all the charter rights and privileges granted to the North Missouri Railway Company by the special act of the General Assembly of Missouri on March 3, 1851, which charter rights, being an irrevocable contract with the state, authorized said company to use and appropriate the public streets of St. Louis city without being liable to interference by the courts or any other power whatsoever. Defendant also pleads an ordinance of the city of St. Louis, enacted in September, 1890, granting to it the privilege of constructing and operating a railroad on Collins street.

As a further defense, defendant alleges that plaintiff, with full knowledge that defendant intended to use Collins street in front of plaintiff's property as a through line for running its freight and passenger trains, allowed and permitted defendant to expend large sums of money, without objection, in purchasing ground for and constructing a freight depot on the block situated immediately north of and adjoining plaintiff's property; that during the construction of said depot defendant continually operated freight trains in front of plaintiff's property; and that by acquiescing in and permitting defendant to incur great expense in constructing said depot, which depot would be a total loss to defendant if this injunction be granted, plaintiff is estopped from maintaining this action.

The evidence and admissions of the parties prove that defendant constructed the track and began operating a railroad on Collins street in the year 1891. Defendant's track was laid and trains operated at that time, not only in front of the property now owned by the plaintiff, but also in front of the blocks immediately north thereof. The defendant's road had been operated only a short time in 1891, when one Lockwood, who owned property in the block immediately north of plaintiff, enjoined defendant from operating trains in front of his property in said street. See Lockwood v. Wabash Railroad Co., 122 Mo. 86, 26 S. W. 698, 24 L. R. A. 516, 43 Am. St. Rep. 547.

From and after the final judgment of this court in the Lockwood Case, the defendant ceased running through trains on Collins street until the early part of 1903; but there is much evidence that during the whole of the period between 1901 and 1903 the St. Louis Bridge & Terminal Company occasionally ran trains on defendant's track on Collins street. This track was also kept in some degree of repair by persons jointly employed by the defendant and the Terminal Company. There is a sharp conflict between the testimony of the plaintiff and defendant as to the condition of defendant's track in 1902, when plaintiff purchased the property which he claims is injured by the operation of defendant's road.

Plaintiff testified that defendant's track was so completely covered with dirt when he purchased his property in 1902 that he did not observe the track or know of its existence, though he admits he was fairly familiar with the condition of the streets in that locality during a period of 20 years next prior to his purchase. Other witnesses for plaintiff testified that the track was covered too deeply with dirt to run cars over, and could only be seen at street crossings, where wagons passed over it. However, this feature of the evidence is not important, in view of the conclusions we have reached on another issue in the case.

The allegation in plaintiff's petition, that defendant had not commenced the operation of locomotives and cars in front of his property on Collins street at the time...