Dougherty v. Wabash, St. Louis & Pacific Railway Co.

I. Hall, J. The motion to elect should have been sustained. There was a misjoinder of two distinct causes of action in one count. McCoy v. Yager, 34 Mo. 134; Otis v. Mechanics’ Bank, 35 Mo. 128; Christal v. Craig, 80 Mo. 371. One cause of action was for damages done to the brick building on account of the construction by defendant of its railroad track in its land “within three feet of the front wall of said two-story brick buildings.” The other cause of action was for damages for trespass committed by defendant upon plaintiff’s land. II. “ The strip of land used as a right of way is under the control of the company, and they may locate their track in such portion of the right of way as they may deem proper. In conveyances the owner should specify if he desires a particular location; otherwise, the company may use their discretion.” Mills on Eminent Domain, sect. 211. See, also, Munkers v. R. R. Co., 60 Mo. 334, and Stark v. R. R. Co., 43 Ia. 501. There is, in the petition, no allegation of negligence, or carelessness on the part of the defendant, in the construction of its railroad track. There was no evidence of such negligence, or carelessness. Under the facts of this case, then, the latter clause of the instruction given for the plaintiff can be upheld only upon the theory that the defendant is liable for the damages [425] caused by moving its track from its original location to another location on its land, within three feet of the brick building, provided that the change of location was unnecessary. Waiving all question of pleading and evidence, and meeting the question thus presented, we hold that in .the light of reason and the authorities above cited, said instruction was erroneous. The defendant had the right to locate its track at its will and pleasure upon any part of its right of way. And one location of ispfcrack did not deprive it of the right to make another location. There is a vast difference between the location of a right of way and the location of a track on a right of way. The right of way may not “float,” but the track may “float” to any portion of the right of way. Of course, if the defendant failed to use ordinary care in the construction of its track, it was liable for any damages caused thereby, but no such issue was presented by the pleadings in this case. The instruction given for the defendant was proper. The instruction given for plaintiff was inconsistent with that instruction, and for that reason also should not have been given. Judgment reversed and cause remanded. All concur.