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U.S. Supreme Court

Osborne v. Missouri Pacific Ry. Co., 147 U.S. 248 (1893)

Osborne v. Missouri Pacific Railway Company

No. 95

Argued December 18-19, 1892

Decided January 16, 1893

147 U.S. 248


A bill was filed against a railroad company in Missouri by the owner of a building on a public street in St. Louis on which the company was about, under competent municipal authority, to lay down tracks at grade for use in running cars drawn by steam power. The bill prayed to restrain and enjoin the company from commencing or carrying out the proposed construction or from taking possession of the street for that purpose. The injuries to result to the complainant's building from the proposed construction were set forth, but without any demand for compensation other than that contained in the prayer for general relief. The statutes of Missouri provide for the assessment of compensation for the taking of property for public use, but not for such assessment where property is merely damaged. Held that the complainant had an adequate remedy at law for the injuries complained of, and was not entitled to the relief prayed for.

This was a bill filed by D. M. Osborne &. Company, a corporation of the New York, in the Circuit Court of the United States for the Eastern District of Missouri against the Missouri Pacific Railway Company, February 16, 1887, alleging that the defendant was about to construct a track along Gratiot

Street in the City of St. Louis, from its main tracks near Twenty-third Street to the property of the St. Louis Wire Mill Company, near the corner of Twenty-First Street, in front of a building on Gratiot and Twenty-Second Streets owned and occupied by complainant, and of a vacant lot adjoining this building, which was also owned by complainant, and on which it intended to erect a building similar to the one then occupied by it, and that the track would be a permanent obstruction, and was to be laid for the private use and gain of the Wire Mill. It was further averred that Gratiot Street was but twenty-four feet in width from curb to curb; that when the proposed building was completed according chanrobles.com-red

Page 147 U. S. 249

to the original plan, there would be no entrance to the same on any street but Gratiot Street; that by reason of the railroad wagon and team to remain on Gratiot Street, and the public would be prevented from using the street as allowed by law; that travel would be diverted and turned away; that it would be impossible for a wagon and team to remain on Gratiot Street in front of complainant's property while cars were being moved or might be standing on the same, and that it would not be safe to use the street by teams and wagons, "to the great, unascertainable, and irreparable damage of your orator's business." It was also alleged that the noise, smoke, and danger from fire and from the shaking and vibration of complainant's buildings caused and occasioned by the passage of cars and locomotives in front of complainant's premises would render them less desirable and valuable as a place of business to complainant; that all the damage threatened to be done complainant was irreparable in its nature, and it could nor be fully compensated therefor in an action at law, and that the construction and operation of the railroad track would reduce the market value of the property and damage the same in a sum in excess of $30,000.

The prayer for relief was that the defendant

"be restrained and enjoined from commencing or carrying out the proposed construction of any railroad track or switch, or from taking possession of said Gratiot Street for said purpose, or from using said Gratiot Street to the exclusion of your orator and the public, and for all such other and further relief as may be necessary and proper."

On October 8, 1887, the defendant filed its amended answer, specifically denying the allegations of complainant's bill, and averred that the track was laid, before the filing of the bill, in pursuance and by authority of an ordinance of the City of St. Louis, approved February 18, 1887, which ordinance was set out in full in the answer. Exceptions and demurrer were filed by the complainant to this answer and overruled. The opinion of the circuit court thereon will be found in 35 F. 84. The court held, upon the pleadings as they stood, that the complainant should be left to its remedy at law. chanrobles.com-red

Page 147 U. S. 250

A replication was then filed, and the cause came on for hearing January 31, 1889. It was stipulated that the track was laid March 20, 1887, some days after the bill was filed. Evidence was given on behalf of the complainant tending to show that the existence of the railroad track on Gratiot Street lessened the value of complainant's property. The court declined to go into the question of the amount of the damages, and counsel for complainant disclaimed asking in this proceeding that the court should ascertain the amount and direct its payment.

The ordinance of the city council authorizing the construction of the track provided that the privilege of using it should be extended to other railroads by connecting their tracks with the switch, and that the track might be used to transport cars to and from the property of any other person or company owning property on Gratiot Street, and desiring such connection, if municipal authority and power were granted for the laying and operation of spur tracks thereto.

There was no evidence that the track was constructed in any other than the ordinary manner upon the surface of the street, without change of grade or other disturbance, but it did not appear to have been laid for the full distance in the center of the street, but inclined to the north, and made a curved line at the west boundary of complainant's premises. There was no evidence of improper or unskillful construction or operation of the railroad, and there was evidence that, before and after the construction, complainant used continuously, for receiving goods, the Twenty-Second Street entrance to its building. It was also shown that the track was used by the defendant in a reasonable and proper manner and at reasonable hours, and there was a conflict of testimony as to whether the value of complainant's property had been enhanced or lessened by reason of the construction of the track. The court directed the bill to be dismissed without prejudice to complainant's right to sue at law for the damages which it claimed to have suffered, and a decree to that effect was accordingly entered, from which an appeal was prosecuted to this Court. The opinion is reported in 37 F.8d 0. chanrobles.com-red

Page 147 U. S. 251

Section 21 of Article II of the Missouri Constitution of 1875 provides

"That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without the consent of the owner thereof shall remain in such owner, subject to the use for which it is taken."

Section 765 of the Revised Statutes of Missouri of 1879, being one of the sections of Article 2 of Chapter 21, relating to railroad companies, reads:

"Every corporation formed under this article shall, in addition to the powers hereinbefore conferred, have power . . . to construct its road across, along, or upon any stream of water, watercourse, street, highway, plank road, turnpike, or canal which the route of its road shall intersect or touch; but the company shall restore the stream, watercourse, street, highway, plank road, and turnpike thus intersected or touched to its former state or to such state as not unnecessarily to have impaired its usefulness. Nothing herein contained shall be construed to authorize the . . . construction of any railroad not already located in, upon, or across any street in a city or road of any county without the assent of the corporate authorities of said city or the county court of such county."

By subdivision 11 of section 4417 of the Revised Statutes of 1879, in Article II of Chapter 89, in relation to cities, towns, and villages, it is provided that cities shall have

"sole power and authority to grant to persons or corporations the right to construct railways in the city, subject to the right to amend, alter, or repeal any such grant, in whole or in part. "

Page 147 U. S. 253


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