Ransom v. Citizens' Railway Co.

Barclay, J. — The facts of this controversy are undisputed. The only issue is one of law. Plaintiff is a property-owner, whose land abuts on the street where the railway track, objected to, is about to be placed. The right to lay the track depends on the proper construction of a municipal ordinance of the city of St. Joseph, the material parts of which are recited in the statement accompanying this opinion. The ordinance was passed in 1865. The company proceeded at once to construct its line accordingly. It ran from a point on Third street, near the Pacific House, along Francis, Sixth, Messanie and Eighth streets, to the Hannibal & St. Joseph railroad depot. It consisted of a line of single track (with switches or turn-outs, at convenient intervals, for cars to pass each other), and was operated as a street railway by defendant for many years, and until shortly before the beginning of this suit, when the company began to indicate its purpose to substitute a double track for the single track. It is this that plaintiff resists. He claims that there is no authority to lay or operate a double track. This presents the only question in the case. Such a street railway as this, so laid and operated as not to materially impair access to, or the enjoyment of, the adjacent property may lawfully be placed in the [380] public highways of a city, If expressly sanctioned by the proper authority. Such a use does not impose any additional burden entitling the owner of adjoining land to compensation, nor can it be justly regarded, at the present day, as any substantial impairment of the public easement or of the private rights of proprietors of land abutting on the street. But grants of such rights and privileges in the public streets must not be extended by construction beyond the fair and reasonable meaning of the language in which they are expressed. In the present ca'se the first section of the ordinance confers the right and privilege to construct double tracks, but it is claimed that this refers only to such tracks as are used for turnouts or switches. Viewing the ordinance as a whole, we consider its fair and reasonable reading to be that a single track with turn-outs was authorized ; but the privilege of laying a double track, if or when needed, was likewise intended to be given. A single track was, no doubt, in immediate contemplation when the ordinance was passed, for, with a double track in use, there would have been no need for turn-outs or switches. The language of section 1 of the ordinance is not as satisfactory or clear, on the point in dispute, as might be desired, but, after the best consideration we have been able to give it, we think its true import will appear by treating the words, “with the power and privileges to said company, to construct double tracks,” as if in parenthesis. Tha t would clearly indicate the sense in which the ordinance was intended to be taken, and its reasonable interpetation, and give full effect (according to an established rule of construction) to all its language, discarding none of it as meaningless. The question then arises whether by constructing and maintaining for many years a single-track railway line, the power conferred by the ordinance was exhausted. [381] If we are right in what has been already said, there can be little doubt on this point. If the authority given embraced the establishment of a line of single track (with turn-outs), as well as the privilege of transforming the single into a double track, it would necessarily follow that the completion and operation of a railway with a single track would be such a compliance with section 2 as was required to vest all the privileges granted. When once the track was laid and the road in operation within the appointed period of time, all the franchises or privileges conferred by the ordinance attached, to be exercised when the exigencies of the business appeared to demand such exercise. The right to construct a double track was appurtenant to the franchise or right to operate a single-track road. As both were sanctioned by the municipal authority, it follows that the establishment of the line in either form would not impair- the right of the company to after-wards change to the other form if occasion required, there being no limitation in that regard in the ordinance itself. The circuit court dismissed the plaintiff’s petition and, in our view, correctly. With the assent of all the judges of this division the judgment is affirmed.