Watson v. Robberson Avenue Railway Co.

Bland, P. J. The plaintiff, Watson, is the owner of a three-story brick building, fronting twenty feet on Boonville street, and running back on and with the line of Olive alley, fifty-sis feet. On this alley and [551] near the rear end of this building, plaintiff has two doorways; one opening into awareroom, and the other into the cellar from Olive alley. The width of this alley is twenty feet. On the opposite corner from plaintiff’s building is a large brick business building, abutting on this alley. On Watson’s side is a brick sidewalk and curb. On the opposite side is a wooden sidewalk and no curb. The distance between curbs (should one be put in on opposite sides from Watson) is eleven feet. Springfield is a city of the third class. By ordinance the city granted to Martin J. Hubble and his associates the right to lay and operate a horse railway over Olive alley. This ordinance requires the defendant to run its cars every fifteen minutes over its road between the hours of 7 A. M. and 8 p. m. of each day. Hubble was the superintendent and Mc-Elhaney the president of the defendant company. The plaintiff objected to the laying of a street railway over the alley, claiming that it would damage his property. The superintendent was informed of these objections frequently by Watson before the track was laid; and Watson swears that Hubble agreed not to lay a track there. The track was laid by the superintendent in the nighttime, and plaintiff shortly after brought suit to restrain the defendants, Hubble and McElhaney, from maintaining and operating the road along and upon Olive alley. On a hearing, the Greene county circuit court granted the prayer of plaintiff’s petition, and perpetually enjoined defendants from maintaining and operating the road over Olive alley. The distance between the tracks of the street railway in this alley and the curbing on either side is two feet and a few inches. As the ordinance granting the franchises to lay and operate the street railway requires the defendants to run its cars over the road every fifteen minutes from 7 A. M. to 8 p. m. of each day, it [552] is quite apparent, to operate this road, as required by the ordinance, would amount to a practical appropriation by the defendants of all that part of the alley lying between its curbs, and effectually prevent the passage of all other vehicles over the alley, and deprive the plaintiff of the privilege of receiving and discharging freight and goods at his side doors fronting on the alleyway. To be deprived of this privilege would, as shown by the evidence, and as is apparent on its face, work a damage to him. Municipal corpotions: obstruction of highways: infrengement of public and private rights: injuction. The streets and alleys of a city are not the private property of the city, nor does its right of supervision confer the power to deprive the general public or the abutting property owner of the reasonably free and unobstructed use of them. The abutting property owner has, in addition to the right of the general public, the privilege of the exclusive temporary use of a whole or part of the adjacent street for a reasonable space of timé for receiving and discharging freight necessary to his business. To deprive him of this right, by appropriating the street wholly to a private use, or to such use as unreasonably interferes with his right', is an infringement on private rights which may be corrected by the injunction process of the courts. The city of Springfield transcended its authority when it granted to Hubble and his associates the privilege of laying a street railway track on this alleyway and to operate cars thereon, for it was the grant of a monopoly, and the deprivation not only of Watson, but of the general public as well, of the use of this alley. Duback v. R. R., 89 Mo. 483; Lockwood v. R. R., 122 Mo. 86. But it is claimed that Watson should be estopped to complain by reason of his acquiescence in this and other structures in connection with it. What he did to evidence his acquiescence is nowhere shown in the tes [553] timony. He protested against it from the beginning. Hubble, knowing of his objections, clandestinely, and in the nighttime, laid the track in the alley. What defendants did elsewhere, in the erection of a car barn, and the laying of rails on another street to connect with Olive alley, was no concern of Watson’s. He was under no legal or moral obligations to object to the other structures. • His interests were affected only by the Olive track; to this he at all times objected and protested. With the concurrence of the other .judges, the judgment will be affirmed.