Versteeg v. Wabash Railroad Company

• Decision Date: 10 May 1913
• Parties: WALTER B. VERSTEEG, Appellant, v. WABASH RAILROAD COMPANY
• Court: Missouri Supreme Court

156 S.W. 689

250 Mo. 61

WALTER B. VERSTEEG, Appellant, v. WABASH RAILROAD COMPANY

Supreme Court of Missouri

May 10, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.

Reversed and remanded (with directions).

T Percy Carr for appellant.

(1) This court has already held that the Wabash Railroad cannot operate its railroad in Collins street without practically monopolizing and confiscating said street to the use of said railroad company and that abutting property-owners are entitled to have such operation of said railroad in said street enjoined. Lockwood v. Railroad, 122 Mo. 86. (2) If the character of the street be such that defendant's track cannot be laid upon the street without hindering the public from using it, then no matter how important to the company that its track should be laid in that street, it cannot be done. Lockwood v Railroad, 122 Mo. 98; Dubach v. Railroad, 89 Mo. 488; Lackland v. Railroad, 31 Mo. 180; Gaus & Sons Mfg. Co. v. Railroad, 113 Mo. 308; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Sherlock v. Railroad, 142 Mo. 172; Corby v. Railroad, 150 Mo. 457; DeGeoffroy v. Railroad, 179 Mo. 698; Lumber Co. v. Railroad, 129 Mo. 455; 2 Elliott on Roads & Streets (3 Ed.), sec. 888. (3) Nor is it competent for a city to authorize such use of a street dedicated as a street as will destroy it as a thoroughfare for the public use. Lockwood v. Railroad, 122 Mo. 98; Dubach v. Railroad, 89 Mo. 488; Lackland v. Railroad, 31 Mo. 180; Gaus & Sons v. Railroad, 113 Mo. 308; Schopp v. St. Louis, 117 Mo. 131; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Sherlock v. Railroad, 142 Mo. 182; Corby v. Railroad, 150 Mo. 457; DeGeoffroy v. Railroad, 179 Mo. 698. (4) The purchase by the defendant of the property and franchises of the North Missouri Railroad did not exempt it from the provisions of its own charter. The most that it acquired by the purchase of the North Missouri in this connection was the right to continue the use of such tracks as were laid by its predecessor during the time it had a right to exercise its franchises. This new branch or spur was constructed by itself and its right to do so must be found in the law under which it was created. Lockwood v. Railroad, 122 Mo. 96; Owen v. Railroad, 83 Mo. 459; St. Louis v. Railroad, 114 Mo. 25; R.S. 1909, sec. 5123. (5) The right of the owner of property abutting on a public street to free and unobstructed access to his property by means of such street is as much property as the street itself, and he cannot be deprived of the one without compensation any more than the other. Lackland v. Railroad, 31 Mo. 180; Gaus & Sons v. Railroad, 113 Mo. 315; Schopp v. St. Louis, 117 Mo. 131; Heinrich v. St. Louis, 125 Mo. 424; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Corby v. Railroad, 150 Mo. 457; DeGeofroy v. Railroad, 179 Mo. 698.

Wells H. Blodgett and J. L. Minnis for respondent.

The facts in the record distinguish the case at bar from Lockwood v. Railroad, 122 Mo. 92. (1) The evidence does not support the allegation in plaintiff's petition, viz.: that defendant had not at the time the petition was filed "commenced operating locomotives, cars and trains" on the branch railroad in front of plaintiff's property. The proof showed that plaintiff's grantors acquiesced in the construction of the branch railroad and in the maintenance and operation thereof for more than eleven years, and that plaintiff stood by and acquiesced in the maintenance and operation thereof from Nov. 13, 1903, to Oct. 7, 1904, when his petition was filed, during which time defendant expended large sums of money on said railroad and depot and terminals connected therewith. Plaintiff and his grantors were thereby guilty of laches, and are now estopped and precluded from asserting the right to the injunctive relief prayed for. 1 High on Injunctions (3 Ed.), secs. 7, 618, 630, 636, 643, 756; 2 Waterman's Eden on Injunctions (3 Ed.), p. 274; 2 Lewis on Eminent Domain, sec. 634, p. 1360; Planet v. Railroad, 115 Mo. 613; Dodds v. Railroad, 108 Mo. 581; Provolt v. Railroad, 57 Mo. 256; Stammer v. Roberts, 90 Mo. 683; Sherlock v. Railroad, 142 Mo. 186; Roberts v. Railroad, 158 U.S. 10; Railroad v. Murray, 87 F. 648; Kakeldy v. Railroad, 80 P. 205; Railroad v. Strauss, 38 Md. 237; Wood v. Sutcliff, 2 Sim. N. Rep. 163; Burkham v. Railroad, 122 Ind. 344; Porter v. Railroad, 125 Ind. 476; Orne v. Friedenberg, 143 Pa. St. 567; Good v. Fire Brick Co., 224 Pa. St. 496; Wolford v. Fisher, 84 P. 850; Duffy v. Mayer, 79 A. 603. (2) The evidence does not support the allegation in plaintiff's petition, viz.: "That by construction, maintenance and operation" of the branch railroad in front of plaintiff's property said property "will be greatly depreciated and damaged in its selling and rental value, and that such damage will differ in degree and kind from those that will accrue to other members of the community and to the public." The failure of proof with respect to this allegation is fatal to plaintiff's case. Elliott on Roads and Streets, p. 519; Rude v. St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85; Nagle v. Railroad, 167 Mo. 89; Kucket v. Railroad, 163 Mo. 260; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560; Grover v. Cornet, 135 Mo. 21; Coonan v. St. Louis, 97 Mo. 92; Osborn v. Railroad, 37 F. 830. The obstruction of the street, necessarily occasioned by the work of constructing defendant's depot and tracks was not such damage to the plaintiff as will entitle him to an injunction. Nagle v. Railroad, 167 Mo. 98. (3) Whatever right of action accrued on account of the construction and operation of the branch railroad in the street in front of the property described in the petition accrued to McLean and the Johnson Land Co., the owners of said property in June, 1891, when the branch railroad was constructed. 2 Lewis on Eminent Domain, sec. 625, p. 1337, and sec. 635, p. 1416; Robert v. Railroad, 158 U.S. 1; Powers v. Railroad, 158 Mo. 87; Boyce v. Railroad, 168 Mo. 583; Van Hozier v. Railroad, 70 Mo. 145; Buentin v. Railroad, 50 Mo.App. 414; Autenreith v. Railroad, 36 Mo.App. 254. Such right of action is now barred by the Statute of Limitations. DeGoofroy v. Railroad, 179 Mo. 698; Powers v. Railroad, 158 Mo. 87; Frankle v. Jackson, 30 F. 398; Scarritt v. Railroad, 148 Mo. 676; 2 Herman on Estoppel, sec. 948. (4) Defendant owned at the institution of the suit a right of way in the street in front of plaintiff's property, and if the injunction be granted defendant will be deprived of its property without due process of law. The State, by the charter of the North Missouri Railroad, granted to that company the right to build branch railroads along narrow streets like Collins street. Railroad v. St. Louis, 66 Mo. 228. The judgment in the case of State ex rel. v. St. L., K. C. & N. Railroad, is conclusive evidence between plaintiff and defendant that said company acquired said right formerly enjoyed by the North Missouri Railroad. 2 Black on Judgments (2 Ed.), secs. 534a, 549, 607. The charter of the North Missouri Railroad is a contract within the meaning of the clause of the Constitution of the United States, which provides that no State shall impair the obligations of contracts, and the right claimed is property within the meaning of the guaranty that property shall not be taken without due process of law. The Legislature, therefore, had no power to impair such contract or take such property. Dartmouth College v. Woodward, 4 Wheat. 627; Bank v. Sharp, 6 How. 319; Birmingham Bridge, 2 Wall. 73; Pennsylvania College Cases, 13 Wall. 190; Davis v. Gray, 16 Wall. 203; Stone v. Mississippi, 101 U.S. 816; Railroad v. Texas, 170 U.S. 243. The North Missouri Railroad had power to mortgage and convey said right as other property. Williamette County v. Bank, 199 U.S. 191. This court is bound by the interpretations placed upon the above clauses of the Constitution by the Supreme Court of the United States, notwithstanding the contrary decision in the Lockwood case. U. S. Constitution, Art. 6; State v. Warner, 165 Mo. 639. Ordinance 15816 merely manifested the consent of the city to the location of the railroad and is valid for that purpose. Defendant acquired a right of way in front of the property described in the petition from the abutting owners by adverse user. Boyce v. Railroad, 168 Mo. 583.

BROWN, J. Lamm, C. J., and Faris, Bond and Graves, JJ., disapprove that part of the majority opinion which criticises the Dartmouth College case. Lamm, C. J., concurring in result but not concurring in the criticism of the dartmouth college case.

OPINION

In Banc.

BROWN J.

-- 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 forty 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 eight feet wide on each side of Collins street, leaving a space only twenty-four 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...