
    Schulenburg & Boeckeler Lumber Company, Appellant, v. The St. Louis, Keokuk & Northwestern Railroad Company.
    Division One,
    June 25, 1895.
    1. City: railroad : street. A city can not confer authority to construct a steam railroad on a sidewalk and adjacent part of the street where the abutting property owners’ use of the same will be permanently hindered and the street rendered useless as a thoroughfare for travel.
    2. -: -: -: injunction. Injunctive relief will in such case be awarded the abutting owner.
    
      Appeal from 'St. Louis City Circuit Court.
    
    Reveksed and kemanded.
    
      Rudolph Schulenbu/rg for appellant.
    (1) Defendant acquired, under city ordinance number 15377, no right or authority to construct its tracks on Hall street, so as to obtain a monopoly of the use of the street and so as to destroy the same for the purposes for which it was dedicated, to wit, for the use of the public generally. R. S. 1889, sec. 2543; Lockwood v. Railroad, 26 S. W. Rep. 698; Knapp, Stout & Co. v. St. Louis Transfer Co., 28 S. W. Rep. 627; Lackland v. Railroad, 31 Mo. 180; Lackland v. Railroad, 34 Mo. 274; Porter v. Railroad, 33 Mo. 128; Tatev. 
      Railroad, 64 Mo. 149; Cross v. Railroad, 77 Mo. 321; Dubach v. Railroad, 89 Mo. 483. (2) The abutting owner has a special right and interest in the street, distinct in kind and in addition to that enjoyed by the public in general; and the defendant acquired under the ordinance in question no right to totally destroy this special right. Dillon on Mun. Corp., secs. 730-734; Ibid., sec. 587d; Lewis on Eminent Domain, sees. Ill, 122; Barnett v. Johnson, 15 N. J. Eq. 481; Lackland v. Railroad, 31 Mo. 180; Cross v. Railroad, 77 Mo. 321; Ferrenbach v. Turner, 86 Mo. 416. (3) Under the ordinance in question, defendant acquired no right or authority to construct its tracks on the sidewalk of Hall street, for the reason, that' such construction and operation of a railroad subjected Hall street to a new and additional servitude, inconsistent and subversive of the uses, for which Hall street was dedicated under the charter and the ordinances of the city of St. Louis, and for the reason that the construction and operation of a railroad on the sidewalk completely destroyed the rights of plaintiff to it as abutting owner under said charter and ordinance. Revised ordinances, City of St. Louis, 1887, number 14400, secs. 577, 552, 1276, 604; Ibid, secs. 357, 606, 614; Charter of the City of St. Louis, art. 3, sec. 26r par. 2; Ibid., art. 6, sec. 18; 3 American Mechanical Dictionary, p. 2175; Oliver v. St. Louis, 69 Mo. 83; Roe v. St. Louis, 100 Mo. 193; Peck v. Batavia, 32 Barbour, 634; Hart v. Brooklyn, 36 Barbour, 226; Himmelman v. Satterlee, 50 Cal. 68; Dyer v. Chase, 52 Cal. 440; Philadelphia v. Lea, 9 Phila. 106; Dickinson v. Worcester, 138 Mass. 555. Plaintiff is entitled <to injunctive relief and an injunction is the proper remedy. Lockwood v. Railroad, 26 S. W. Rep. 698; Knapp, Stout <& Co. v. St. Louis Transfer Co., 28 S. W. Rep. 627; Carpenter v. Grisham, 59 Mo. 247; 
      Dubach v. Railroad, 89 Mo. 488; Glaesner v. Anheuser, etc., Ass}n, 100 Mo. 508.
    
      John G. Chandler for respondent.
    (1) Where a railroad is located and constructed in the street of a city, under authority of the municipality, and on the established grade of the street, such construction of the railroad and the use thereof for transportation of freight and passengers, by steam power, are lawful, and within the purposes for which the street was dedicated; and any incidental delay or inconvenience caused by the passage of trains to the abutting lot owners, either by obstructing ingress to or egress from their property, or from dust, smoke, noise, or vibration, is not a damage the subject of compensation within the meaning of article 2, section 21, of the constitution of Missouri. Gaus & Sons Mfg. Co. v. Railroad, 113 Mo. 308; Ass’n v. Bell Tel. Co., 88 Mo. 258; Railroad v. Railroad, 97 Mo. 457; Van De Vere v. Kansas City, 107 Mo. 83; Smith v. Railroad, 98 Mo. 20; Randell v. Railroad, 65 Mo. 325; Railroad v. St. Louis, 66 Mo. 228; Tate v. Railroad, 66 Mo. 150; Lachland v. Railroad, 34 Mo. 259; Lachland v. Railroad, 31 Mo. 181; Porter v. Railroad, 33 Mo. 128; McMahon v. Railroad, 6 S. Rep. (La) 640; Jachson v. Railroad, 41 Fed. Rep. 656. (2) Even if the abutting lot owner were damaged by such use of the street, within the meaning of the constitution, he would not be entitled to an injunction, but must sue at law. Stetson v. Railroad, 75 111. 74; Patterson v. Railroad, 75 111. 588; Railroad v. Sherts, 84 111. 135; Rigney v. Chicago, 102 111. 79; Mills v. Parlin, 106 111. 60; Truesdale v. Co., 101 111. 561; McMahon, v. Railroad, 6 S. Rep. (La.) 640; Arbents, v. Railroad, 10 S. E. Rep. (W. Va.) 14; Ohio River Co. v. Gibbons, 12 S. E. Rep. (W. Va.) 1093; Yates v. West Grafton, 12 S. E. Rep. (W. Va.) 1075; 
      Spencer v. Railroad, 23 W. Va. 406; Campbell v. Railroad, 23 W. Va. 238; Smith v. Railroad, 23 W. Va. 451; Lorie v. Railroad, 32 Fed. Rep. 270; Osborne v. Railroad, 35 Fed. Rep. 84; Hutton v. Railroad, 7 Hare, 259; Lister v. Lobley, 7 Adolph. & E. 134; Denver v. Railroad, 17 Pac. Rep. (Col.) 777; Gaus <fc Sons Mfg. Co. v. Railroad, 113 Mo. 308. (3) The railroad is a constitutional highway, authorized to be “constructed and operated between any points in the state.” Hence, the construction of a part of its main line on a street or other highway can not in legal contemplation divert the latter from its purpose of a highway, or constitute a monopoly thereof for any private purpose. Const, of Missouri, 1875, art. 12, secs. 13, 14; 1 R. S,, sec. 2543. (4) The sidewalk is merely part of the street, and as much under control of the city as any other part of it. Oliver v. City of Kansas, 69 Mo. 79; Knapp, Stout & Co. v. Railroad, 28 S. W.- Rep. 627; Dooley v. Sullivan, 14 N. E. Rep. (Ind.) 566; 2 Dillon, Mun. Corp., see. 1012, and note. (5) Under the terms of the ordinance, and the location of the already existing railroads, respondent’s tracks could only have been laid as and where they were.
   Macfarlane, J.

Plaintiff, a business corporation, sues defendant, a railroad corporation, the object of which was to enjoin defendant from building and maintaining double tracks of its railway on the east side of Hall street, in front of plaintiff’s property. A demurrer to the petition was sustained and plaintiff appealed. •

The facts as shown by the petition are in substance as - follows: Hall street, one hundred feet in width, runs north and south in the city of St. Louis. Plaintiff owns land fronting on the east side of said street eight hundred and eighty feet. He acquired and uses said land for a lumber yard, planing mill and saw mill, and bas erected on the eastern portion thereof ^mills and other improvements of great value. An ordinance of the city requires a sidewalk twenty feet wide on each side of every street one hundred feet in width, and permits merchants and manufacturers to occupy one half of such sidewalk for the purpose of receiving and shipping goods. Plaintiff is a merchant and manufacturer, and needs for the purposes aforesaid, the eastern half of such sidewalk where the same abuts on his said property.

Eor several years prior to the institution of the suit under authority of ordinances of the city the center part of Hall street had been occupied by four tracks of two steam railways. The whole of the east side of the street is thereby taken up by these railway tracks, except the sidewalk and about four feet adjacent thereto.

In December, 1889, the city of St. Louis passed an ordinance whereby defendant was authorized to construct and operate a railroad with double tracks along Hall street in front of the property of plaintiff. In pursuance of the authority contained in this ordinance, plaintiff located and afterward constructed two railroad tracks oh the east side of said street where the same abuts upon plaintiff's property. The tracks so built practically occupy the whole of the sidewalk, by which the street is rendered utterly useless as a public thoroughfare for ordinary travel and plaintiff is permanently hindered in the use of the sidewalk and street, as well as ingress to and egress from his property, etc.

The foregoing statement is sufficient to show that the facts make a case in all material particulars the same as that of Knapp, Stout & Co. v. Railroad, 126 Mo. 26.

It was in that case held that the tracks of a steam railroad “placed on what is properly the sidewalk, close up to the plaintiff’s lot, is an unlawful structure, one which the city did. not and could not legalize, as against the rights of plaintiff. The injury inflicted upon the plaintiff is of a continuous character, and the case is one calling for equitable relief.”

In the case of Lockwood v. Railroad, 122 Mo. 86, it •was held that the city of St. Louis could not authorize the construction and operation of a steam railroad through a street so narrow that such use will necessarily destroy it as a public way and deprive abutting owners of access to their property. It was further held in that ease that the property owner was entitled to injunctive relief.

The petition of plaintiff makes as strong a showing for equitable relief as was made in either of these cases. For the reasons given in them the judgment is reversed and the cause remanded, with leave to the defendant to plead to the petition if it desires to do so.

Babclay, J., not sitting. Bbace, C. J., and Robinson, J., concur.  