Moore Manufacturing Co. v. Springfield Southwestern Railway Co.

WALKER, P. J. — Plaintiff, a corporation, engaged in manufacturing in Springfield, Missouri, petitioned for a mandatory injunction in the circuit court of Greene county to compel defendant, a railway corporation, to remove its tracks, switches, and crossovers from Phelps avenue in said city, opposite plaintiff’s property, and that it be restrained from connecting its. track thereon and perpetually enjoined from thereafter constructing and maintaining said superstructures on said avenue and from running its trains, engines and cars thereon. The grounds are that such use and occupation of said avenue by defendant prevent plaintiff from enjoying free ingress to and egress from its building located on the south side of said avenue at its intersection with Washington street. A temporary injunction was denied in the circuit court of Greene county, whereupon plaintiff took a change of venue to the circuit court of Barton county; a trial upon the merits was there had, resulting in a finding for the defendant and an appeal therefrom by plaintiff to this court. Phelps avenue is. fifty feet wide. Long prior to the erection of plaintiff’s building thereon the St. Louis & San Francisco Railroad Company, for brevity called the “Frisco,” had constructed and used, and still maintains and uses, a railway track on said avenue, located eighteen or twenty feet from plaintiff’s building. In addition, the said railroad company many years ago constructed and now maintains and uses another track which crosses Phelps avenue at its. intersection with Washington street diagonally across said streets from plaintiff’s building. This is the Frisco’s main line on which it runs its passenger trains between Springfield and St. Louis. Also for many years plaintiff has maintained and now uses a spur or sidetrack from the Frisco track running along said avenue into — 175 — plaintiff’s building to facilitate tbe handling of.its shipments. Of the proximity and use of none of these tracks does the plaintiff complain, but of defendant’s track located on the north side, of said avenue about thirty-five feet from plaintiff’s building. This track of defendant was constructed prior to the erection of plaintiff’s building -under the authority of ordinances adopted by the city of Springfield and has since been maintained and used by defendant for the transfer of freight cars, except a break in said track of about thirty feet, which has heretofore not been completed, immediately north of plaintiff’s building. This track is- used by defendant for the transfer of freight cars, when the Frisco is not using its- adjacent tracks along said avenue. The space of eighteen or twenty feet between plaintiff’s building and the Frisco tracks is much below the level of the grade established by the city, except where a passage-way over same has been made by plaintiff opposite the entrance to its building — the testimony not showing why this side of the avenue has not been improved. All of the tracks- in question are standard gauge and there is, therefore, a.space of four and a half feet between the rails of each particular track. Between the inside rails of the defendant’s and the Frisco tracks there is a space of eight feet, and the north rail of defendant’s track is about fifteen feet from the north line of said avenue. The space, therefore, unoccupied by tracks on the avenue opposite plaintiff’s building is, on the north side, fifteen feet wide, and on the south side eighteen or twenty feet wide. Since defendant constructed its track on said avenue it has at an expense of several thousand dollars built a retaining wall along the north side'of same and has filled and macadamized it, bringing its level up to the grade established thereon by the city. The present physical use of said avenue has existed for more than — 176 — three years, before the commencement of this suit. There is a conflict of testimony as to the extent to which the avenne is used by the general public; plaintiff’s officers .and employees testifying that the tracks thereon and their frequent use prevent travel, while many disinterested witnesses testify not only as. to the frequency of the use of said avenue as a highway, but as to its increased use since improved and brought up to the grade. Plaintiff’s building was erected about two and one half years ago. The tracks were all on the avenue and used for like purposes as at present when the building was erected. The conditions have in no manner changed since the building was erected, except that defendant now proposes to connect the ends of its. track on the north side of said avenue. To prevent this and to require defendant to remove its tracks from said avenue plaintiff asks the interposition of a court of equity. In a long line of decisions from Lackland v. Railroad, 31 Mo. 180, to Copper & Iron Mfg. Co. v. Manufacturers’ Ry. Co., 230 Mo. 59, 83, this court has held it not unlawful for a city to authorize the construction and operation of a steam railroad on a street and that such use is not a new servitude. The material question, therefore, for determination here, is whether such occupation of said avenue as has been authorized by ordinances, will constitute a monopoly in the use of same by defendant to such an extent as. to impair plaintiff’s rights to' ingress to and egress from its building for all reasonable purposes.. Passing without comment the criticism as to the sufficiency of the abstract in view of the requirements of section 2(M8¡, Revised Statutes 1909, we have carefully reviewed the record to ascertain if it contains substantial testimony to support plaintiff’s claim for relief. — 177 — Phelps avenue is not a retail or residence street. Factories, foundries and other plants, including plaintiff’s, are located along same, requiring its use to a large extent, in the transfer of materials to and manufactured products from these various centers of industrial activity. The avenue, therefore, may not improperly be designated as a manufacturing street. While-the practical setting apart of said avenue for the purposes designated does not limit its lawful use as a highway, it may and in justice to the public (which is entitled to be considered as well as the petitioner) it should, influence the action of a court of equity in responding to a prayer for relief made by one who, with a full knowledge of the prior and present use and occupancy of said avenue, deliberately locates¡ thereon and rests content under existing conditions for years', before making complaint. Preliminary to a consideration of the doctrine of' laches, or, to state it conversely, defendant’s long continued user of said avenue, under the conditions existing at the time it erected its building thereon, it is pertinent to compare the width of the unoccupied portions', of this avenue opposite said building with that of other-streets in which the courts have had under consideration similar questions to the one here involved. In Versteeg v. Railroad, 250 Mo. 61, 78, a case in which a similar action was brought seeking- like relief as herein, the unoccupied portion of the street between the railway tracks and the sidewalk was seven feet and six-inches, and relief was not granted on account of a lack of space; and in Seibel-Suessdorf C. & Iron Mfg. Co. v. Railroad, 230 Mo. 59, 78, it was held that a railroad company would not be enjoined from laying its tracks-, and operating a railroad on a public street where the-space between the sidewalk and the railroad company’s tracks or trains when in operation, was ten feet and^ six inches. — 178 — The connection or completion of defendant’s track •on said avenue opposite plaintiff’s building will not lessen the space between the outer or north rail of said track and the street line, which, as stated, is about fifteen feet. With the fact that the portion of said avenue oc■cupied by the Frisco tracks has not been brought up to the grade, and that a like condition exists in regard to the portion of said avenue between the Frisco tracks and plaintiff’s building, we are not concerned in the determination of the question primarily involved in this case. The grade has been established, defendant has complied with the ordinances in regard thereto, and it is with its conduct alone that we are concerned, and not as to whether the city, or the Frisco, or the plaintiff, has been remiss in completing the improvement of the south side of said avenue to such an extent as to add to plaintiff’s facilities for the transaction of its business.. The precedents cited afford authority for the refusal of the relief asked on the ground that the unoccupied and improved portion of said avenue on the north side of the railroad tracks is sufficient for the reasonable use of the plaintiff, provided defendant’s occupancy of its tracks is not such as to impair plaintiff’s rights. [Versteeg v. Railroad, 250 Mo. l. c. 78.] There is a conflict of testimony as to whether said avenue is now used by vehicles, and for general purposes as a highway, as frequently as before the construction of defendant’s tracks thereon. If the evidence was clear in regard to such lessened use, to determine its materiality in this case, it must first be shown that such lessened use by the public was due to the location of the tracks thereon and to their occupancy by the railroads; second, that such occupancy so far as concerns the plaintiff, was by the defendant; and, third, that the cessation of travel on said avenue has had an injurious, effect upon plaintiff’s business. That — 179 — the tracks on said avenue opposite plaintiff’s building were frequently used in the transfer of freight cars thereon, there is much testimony on the part of the officers and employees of the plaintiff, but it is indefinite as to whether the particular tracks used were those of the defendant or the Frisco; as to whether there is less travel on said avenue now than heretofore, the material conflict in the testimony is such as to afford no definite conclusion in reference thereto. As to the effect of said lessened travel generally, if it be admitted to exist, there is no evidence other than indefinite declarations in regard thereto by witnesses for plaintiff, and a like character of testimony is all that has been adduced in regard to any injury to plaintiff’s business consequent upon the location and use of defendant’s tracks upon said avenue. No disinterested party, present patron, or prospective purchaser of plaintiff, has testified to any facts in regard to the location of said tracks and the use of same by defendant as materially affecting plaintiff’s business. This is a matter of which the plaintiff of necessity had a complete and accurate knowledge, and it behooved it to submit same to the court in support of its application for relief. Failing to do so, the conclusion reasonably follows that no such fact existed. There is, therefore, in our opinion, not sufficient evidence on which to base a prayer for relief on account of the injury done to plaintiff’s business. Plaintiff has rested content with the location and use by defendant of its track on Phelps Avenue, except the disconnected portion of about thirty feet, for more than three years before the institution of this action. It was required to take notice of the adoption of the ordinance authorizing such use and occupation[Boonville ex rel. v. Stephens, 238 Mo. 339, 357; Palmyra v. Morton, 25 Mo. 593, 597; 28 Cyc. 392.] That plaintiff had actual knowledge of the improvement of said avenue by defendant, and its subsequent and con — 180 — tinuous use and occupancy of same, there is no question. Armed with a knowledge, therefore, of the passage of the ordinances by the city, authorizing the use and occupancy of said avenue by the defendant, and of its subsequent improvement of the north side of same at great expense for that purpose, and of its continuous use and occupancy of same thereafter, plaintiff proceeded to erect its building for a distance of two hundred and thirty feet along the unimproved south side of said avenue and to wait three years before making any complaint in regard thereto, until defendant took steps to connect its track for a space of thirty feet along the north side of said avenue. Under this state of facts the equities of plaintiff’s plea are not apparent. Authorities are not wanting in this jurisdiction to the effect that where one stands by and permits the construction of a railroad upon a street, and takes no step to prevent it, he will not be heard thereafter to complain, especially in the absence of evidence of substantial injury. [Versteeg v. Railroad, 250 Mo. l. c. 76.] We are, therefore, of the opinion, especially in the absence of other compelling testimony, that plaintiff’s laches in this matter are sufficient to authorize a denial of its prayer for relief. The decree, therefore, -of the trial court should be affirmed, and it is so ordered. Brown and Baris, JJconcur.