Zimmerman v. Metropolitan St. Ry. Co.

• Decision Date: 30 January 1911
• Citation: 134 S.W. 40,154 Mo. App. 296
• Parties: ZIMMERMAN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

134 S.W. 40

154 Mo. A. 296

ZIMMERMAN v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

January 30, 1911.

1. MUNICIPAL CORPORATIONS (§ 671) — STREETS—ABUTTING OWNERS—RIGHT OF INGRESS AND EGRESS.

The owner of property abutting on a street is entitled to have his right of ingress and egress to and from his property over the street not materially obstructed.

2. MUNICIPAL CORPORATIONS (§ 671) — STREETS — OBSTRUCTION TO INGRESS AND EGRESSS—INJUNCTION.

There being an obstruction of the street materially obstructing the right of ingress and egress of the owner of abutting property, thus constituting a private nuisance, he is entitled to injunctive relief.

3. MUNICIPAL CORPORATIONS (§ 671)— STREETS—INGRESS AND EGRESS OF ABUTTING OWNERS—PERMITTING OBSTRUCTION.

A city cannot authorize a street railroad to so use a street with its tracks and cars as to materially obstruct the right of ingress and egress of an abutting owner, thus constituting a private nuisance.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by A. D. Zimmerman against the Metropolitan Street Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

See, also, 227 Mo. 346, 126 S. W. 1030.

John H. Lucas and Ben F. White, for appellant. James G. Smith, for respondent.

ELLISON, J.

In the month of October, 1903, defendant was operating a street car line east and west on Fifteenth street in Kansas City at a point where that street intersects Kensington avenue. On the east side of Kensington avenue and south side of Fifteenth street was a car barn of defendant, used for the purpose storing cars, and for such other purposes as are incident to a switchyard of a street railway company. On the west side of Kensington avenue, and immediately south of Fifteenth street, plaintiff had the ownership and possession of a tract of land abutting upon Kensington avenue at said point 132 feet, and situate upon this abutting property are two two-story buildings, to which buildings ingress and egress is had by way of Kensington avenue.

The petition alleges that the defendant had no legal right whatever to construct any street car tracks or any other obstructions in Kensington avenue along and in front of the plaintiff's property; that in the month aforesaid the defendant began the construction of a switch track from the Fifteenth street tracks at a point slightly west of the west line of Kensington avenue, and built such track in a southeasterly direction across Kensington avenue at a point a little south of the south line of Fifteenth street, which track, as so constructed, entered into the barn of defendant. After the switch track had been laid down, defendant began the construction of a spur track in Kensington avenue, branching off in a southerly direction from the south side of the switch track, and then plaintiff filed his petition in the circuit court asking to enjoin defendant from further constructing "car tracks in said Kensington avenue, and from the obstruction and destruction of said Kensington avenue as a public highway; that defendant be ordered to remove all tracks and other obstructions placed in said Kensington avenue, and to restore said Kensington avenue to the condition in which it was previous to the acts herein complained of."

Plaintiff further alleged that: "Said tracks completely gridiron the entire surface of Kensington avenue in front of the plaintiff's property; that said tracks are designated for and will be used when completed for the purpose of shunting cars backward and forward and onto the premises of defendant east of Kensington avenue, and also for the purpose of standing cars or storing them, * * * whereby said defendant will wholly destroy said avenue as a public thoroughfare, and will confine the same to its own exclusive use, without lawful authority or any authority whatever, and wrongfully, to the great and irreparable damage of plaintiff which said obstruction so placed and maintained by said defendant in said avenue will constitute a public nuisance, and a private nuisance to this plaintiff. * * * Plaintiff says such injuries here complained of will be continuous, irreparable, and unascertainable, and cannot be compensated in damages; that in addition to the damages and injuries sustained by the entire public by reason of the nuisance aforesaid, this plaintiff will sustain local and specific damages and injuries to his said property, and in the use thereof, which said damages and injuries are local, peculiar, and specific to him, and separate and different from that of the public generally, or other persons who may suffer injuries thereby; that plaintiff is without adequate remedy at law or any remedy whatever for the injuries and wrongs aforesaid, except in equity, for the abatement of said nuisance and the restoration of said street to the use of the public, and especially for the free and open use of this plaintiff in connection with his said lot." After filing the petition defendant ceased to further dig in Kensington avenue or further construct tracks there until December 4, 1903, on...