Zimmerman v. Metropolitan St. Ry. Co.

• Decision Date: 31 March 1910
• Citation: 227 Mo. 346,126 S.W. 1030
• Parties: ZIMMERMAN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

126 S.W. 1030

227 Mo. 346

ZIMMERMAN v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1910.

COURTS (§ 231) — APPELLATE JURISDICTION — SUBJECT OF CONTROVERSY.

A decree in a suit to enjoin a street railway from laying its tracks on an avenue, on the ground that plaintiff is the owner of real estate fronting on the avenue, that defendant has no authority for laying its tracks on that avenue, that laying its tracks there will practically destroy the street as a public highway and impair the value of plaintiff's property, is not appealable to the Supreme Court; there being no attempt on the part of defendant to condemn or take any of plaintiff's property, and there being no question of title to real estate.

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

Action by A. D. Zimmerman against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Cause transferred to the Kansas City Court of Appeals.

Jno. H. Lucas, for appellant. Jas. G. Smith, for respondent.

VALLIANT, J.

This is a suit in equity, whereby the plaintiff asks to enjoin the defendant street railway corporation from laying its tracks in Kensington avenue in Kansas City. The petition states that Kensington avenue and Fifteenth street are public highways crossing each other at right angles; that plaintiff is the owner of certain real estate situate at the southeast corner of those streets, fronting 132 feet on Kensington avenue, and 43 feet on Fifteenth street; that defendant owns certain real estate of greater area situate at the southwest corner of those streets fronting both, on which are situated buildings called in record "car barns," by which we understand is meant car sheds or buildings in which to store its cars; that defendant owns and operates a street railway along Fifteenth street in front of plaintiff's property and switch tracks leading to defendant's car sheds; that defendant is about to lay tracks leading from its Fifteenth street tracks into Kensington avenue which it has no authority in law for doing, and which, if suffered to be done, will practically destroy the street as a public highway and impair the value of plaintiff's property, cutting off or impairing its ingress and egress. The petition alleges that plaintiff's injury would be irreparable, his damages not estimable, and he has no remedy at law. The answer was a general denial and a plea of estoppel. The trial resulted in a decree for ...