Kitchell v. Mancheste Road Electric Railway Co.

The plaintiff owns a lot of ground abutting on Manchester avenue in the city of St. Louis, over which -defendant has constructed and is operating a street railroad. The defendant is a corporation organized under the laws of Missouri. By an ordinance passed by the municipal assembly of the city of St. Louis, numbered 1Y,008 and approved December 31, 1892, the defendant was authorized to construct and operate a double track railway, beginning on Manchester avenue at its intersection with the west line of King’s Highway, thence extending along and on said Manchester avenue to the western limits of the city. This ordinance was amended by ordinance numbered 1Y,3Y5, approved January 30, 1894, by which the defendant was authorized to-build and maintain and operate its road beginning on Manchester avenue at a point west of its junction with the Old Manchester road and where the tracks o-f the Lindell Railway Company leaves said Manchester road, thence extending along said Manchester road to the western city limits. On December 28, 1896, the municipal assembly by ordinance number-18,231, authorized the defendant to extend its tracks and. operate its road from the intersection of Manchester avenue- and Sarah street, north on Sarah street to the intersection of' Sarah street with the track of the St. Louis and Suburban *344Railway Company. ■ Under these ordinances the defendant is required to cause the grade of its roadbed and tracks to conform to the then or thereafter established grades of said streets over which it should construct its railroad, and at all points where its railroad crossed any of the streets of the city the defendant is required at its own expense to grade all streets upon which its tracks might be laid for the full width of said streets from building line to building line to the satisfaction of the board of public improvements of the city. The defendant was authorized under these ordinances to run its cars at a speed of fifteen miles an hour. The plaintiff filed his petition in the circuit court, praying that defendant be enjoined from operating its railroad on Manchester avenue, on the alleged grounds, first that defendant had unlawfully laid its tracks on said avenue in front of plaintiff’s property, in that it had failed and refused to conform the grade of the avenue and of its roadbed to the grade established by the city and had not completed the construction of its railroad within the time limited by the ordinance authorizing it to lay said railway on said avenue; second, that ordinance number 18,231 under which defendant is proceeding to construct its railroad on Sarah street is void, for the reason it is opposed to'what is commonly known as the Julian Law; third, that the ordinance under which defendant is operating its raill-oad is unlawful, because it authorizes the defendant to run its cars upon its tracks at “the dangerous and extremely rapid speed of fifteen miles per hourfourth, that the laying of defendant’s tracks has already caused serious damage to the property of plaintiff and that their maintenance in the future will cause great and further damages impossible to estimate, and that the operation of said railroad on the street in front of plaintiff’s property will be dangerous to life and injurious to the peace and quiet of plaintiff, and that the occupation of the said street for the purpose of defendant’s railroad is an unlawful viola-*345lion of the purposes to which said street was originally dedicated.

The answer admitted that defendant was a corporation, admitted the passage of the several city ordinances cited in the petition, and admitted that defendant had constructed its railroad on Manchester avenue, and that it was operating it and denied all other allegations. On a hearing the plaintiffs bill was dismissed and judgment entered for defendant, from which plaintiff appealed.

The several ordinances conferring authority on defendant to build its railroad were read in evidence. An ordinance numbered 15,431, approved February 11, 1890, establishing the grade of a great number of streets in the city of St. Louis, among which are the streets on which defendant had constructed its railroad, was offered in evidence, and excluded by the court. Appellant also offered to prove that the defendant had not graded that portion of Manchester avenue on which it had laid its tracks in conformity with the grade established by ordinance numbered 15,431, which was also excluded. Appellant also offered to prove that his lot on Manchester avenue had been graded to conform to the established-city grade, which was also excluded. It is conceded thatthedefendantlaid its tracks on Manchester avenue on the grade as it found it, and that the city had never taken any steps to have the grade of that avenue and.street at points of crossing it to conform to the grade established by ordinance. In other words, the city has only made or caused to be made a paper grade, not an actual grade. The learned trial judge gave as a reason for rejecting ordinance numbered 15,431 and the proffered evidence that defendant had not graded Manchester avenue, that the defendant was not bound to grade its roadbed or the street, until the city directed the grading to be done.' It seems to us that this is not only the reasonable construction of the contract between the city and the defendant company with reference to the grading, but the necessary *346•one, for, to grade the streets upon which the railroad is built before the grading of the streets crossing them is undertaken, would probably greatly impede, if not entirely hinder, the passage of vehicles across the graded street. Under this view of the ordinance it was wholly immaterial whether or not appellant had graded his lot to conform to the established grade,and there was no error in excluding his evidence that he had so graded it. The validity of the ordinances under which the respondent constructed and operates its railroad, and the fact that it failed to complete its road within the time limited, can not be raised in this kind of a suit by a private individual, unless he can show special or pecuniary injury to himself,whichwasnotdone or offered to be done by appellant; such questions concern the public generally and not any particular individual, unless he has suffered a particular injury, and can only be raised by the state or city granting the franchise. Glasgow v. City, 107 Mo. 198; Rude v. City, 93 Mo. 408; Cummings v. City, 90 Mo. 259. No other questions are raised by the record for decision, and we affirm the judgment.