# Osborne Company v. Missouri Pacific Railway Company

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United States Supreme Court
147 U.S. 248
Osborne Company v. Missouri Pacific Railway Company
This was a suit by D. M. Osborne & Co. against the Missouri Pacific Railway Company for an injunction to restrain the laying and operating of a railroad in a public street. Exceptions and demurrer to the answer were overruled. 35 Fed. Rep. 84. A replication was then filed, and on final hearing the bill was dismissed, without prejudice to an action at law. 37 Fed. Rep. 830. Plaintiff brings error. Affirmed.
Statement by Mr. Chief Justice FULLER:
This was a bill filed by D. M. Osborne & Co., a corporation of the state of 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 24 feet in width from curb to curb; that when the proposed building was completed according 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 Feb. Rep. 84. The court held, upon the pleadings as they stood, that the complainant should be left to its remedy at law.
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 Fed. Rep. 830.
Section 21 of article 2 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, water course, street, highway, plank road, turnpike, or canal which the route of its road shall intersect or touch; but the company shall restore the stream, water course, 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 Iocated 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 2 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.'
P. R. Fletcraft and J. E. McKeighan, for appellant.
[Argument of Counsel from pages 251-253 intentionally omitted]
John F. Dillon and Winslow S. Pierce, for appellee.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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