Bao
FEDERAL..,lWPORTlilB,: vol.
87· ,'i'
D. M..OSBORNE,&·00.t1.MrssoURI I
PA.C.
Ry. Co.
(Oircuit Court. E. lJ. Mi88ouri. l;1arch 11, 1889.)
INJUNCTION-REMEDY AT
Complainant. a property oWner on a street along which defendant was about .to construct a railroad track. under authority of tIle city. filed its bill for equitable relief. on. the. ground that its. property would be dllmaged. and that compensation had not been paid as required as a condition precedent by the state 'constitution. (Const. Mo. art. 2. §21;) but no application for a temporary injunction was made. andintbe: mean time the track was laid.. and in daily use. He.d. on final hearing. that: the court would not grant an injunction, but would leave complainant to its remedy at law. .'
LAW.:.....DELAY.
In Equity. Bill for injunction. On final hearing. For opinion on demurrer to answer, see Rep. 84., This was a bill to restrain the laying of a railroad track along Gratiot street in the city of St. Louis; as authorized by a municipal ordinance and by the general statutes of the state. . Complainant owned a lot abut· ting on the street, on a portion of which lot it had erected a warehouse used forthe storage of agricuItllralmachinery. It based its right to relief on the ground that the laying of a railroad track along the street in. front of its property would cut off access to one entrance oHts warehouse, and lessen the market and rental value. of its property, and that under section 21, art. 2, of the of the state of the track in question could. not lawfully be laid until such damages had been ascertained and paid. Section 21 is as follows: "Private property shall ndt be taken'or damaged for public uSe without just compensation. Such compensation shall be ascertained by a jury orboard of commissioners, * * * and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or theproprietary rights of the ownet· therein divested." Section 4, art. 12, Const. Mo., referred to in the opinion, contains the following provision: "The right of trial by jury shaH be held inviolate in all trials of claims for compensation, when, in the exercise of said right of eminent domain, 'lny incorporated company shall be interested either for or against the exel'cise of .said right." Mills Flitcrajt, for complainant. Thomas J. Portis and Bennett Pike, for defendant.
«
\ THAYER, J., (after stating the facts as above.) The first question that presents itself in this case, now that the evidence has been heard, is whether the complainant is entitled to equitable relief, even conceding that the laying of the track in and along Gratiot street did, to some extent, damage complainant's property within the meaning of the constitution of the state. Article 2, § 21. It is most likely true, as claimed by complainant's counsel, that by virtue of section 4, art. 12, Const. Mo., complainant is entitled to have its damages assessed by a jury, and that the court cannot in this proceeding assess the damages sustained, and en-
'D. :M. OSBOll.NE& 00. V.:MISSOURI PAC. BY.
co.
881
tera. decree 'therefor, or make the right ofthe defendant to further use saidtrack dependent upon its paying to complainant the sum so assessed. At all events:, the court does not feel warranted in exercising powers of the doubtful nature last suggested; therefore, if it grants any relief, it must be an order of injunction restraininp; the defendant from using the Gratiot-Street track, until complainant's damages are duly assessed by a jury in some form of proceeding, and paid. Should the court, under the peculiarcircumstanccs of this case, grant such relief? The testimony no doubt tends to show that the existence of a railroad track in Gratiot street lessens the value of complainant's property to some extent. Such deprp,ciation in the value of the property seems to be largely due to the fact that the track is not laid for the full distance in the center of the street,but inclines to the north, and cuts the curb line at the west boundaryof complainant's premises. That fact may lessen the value of the unimproved portion Of complainant's lot, and render it less marketable than it· would otherwise be.· It may also be that the track along Gratiot street slightly interferes with the convenient receipt and delivery of goods at the south entrance of complainant's building on said street. There is some testimony before the court to that effect. But the inconvenience resulting from such interference is evidently very slight. I will also add that it is by no means certahi that the value of complainant's property is impaired in the manner above stated. Opinions pro and con were expoint by the various. witnesses. A jury} calledtptry the pressed issue and assess the damages, might reasonably find that no damage had been sustained ill consequence of the laying of the track, or that the damages were inconsiderable. The court is of the opinion that the use of the track has not seriously obst!;ucted, and will not in future seriously /3trupt, access to complainant's premises, and that the damage done to its property in the way of lesse[}ing its market or rental value is in any eventsmall. The bill in the present case was filed February 16, 1887, two qaysbefore the approval by the mayor of the city oiSt. Louis of the ordinance grantingthe defendant leave to lay the track in question. The track was notlaid, as the evidence /3hows, until March 20, 1887. When work was begun the defendant on the track, no application was made fot' au'injunction to stay operations for the time being. The case was not bkdught to .a final hearing until nearly two years had elapsed, to-wit, January 31. 1889. Since the 20th of March, 1887, the track has been used daily, the mean time complainant has made no application for a temporary restraining order. If the court should at this late day enter a decree enjoining the use of the track, it would probably put third parties to great inconvenience, who are in a measure depllndent Jlpon it either forshipmllDts or for supplies. . As the case stands, I know of no proceeding which the defendant can take to obtain an assessment of the damages, if any, that complainant has or will by the I:\lld operation of tlile track in Gratiot street. Complainant, on the other hand, has an adequate and simple by an .action .at law to recover such damages. As I remarked Wl!S before me on demurrer to the answer, (35 Fed. Rep. when this
832
JZDERAL
vol. 37.
84,) the track was laid in pursuance of legislative 'and municipal author.:. ity, and is in no sense a pliblic nuisance. Defendant has a right to use it, on condition. of course, of paying such damages as abuttingproprietors may have sustained. Under thecircuIUstances, the court is of the opinion that an injunction ought to be denied, and the complainant remitted to its legal remedy. If it had made a seasonable application for a temporary injullction, when the bill was filed, or when defendant began to construct the track, the court would undoubtedly have been authorized, on the averments of the bill and the'showing now made, to grant such an order; but it does not follow that it ought, for that reason, to grant an injunction now. Injunctive relief should be applied for seasonably. Even when there are some grounds for such relief, it is in a measure diRcretionary with the court to grant or withhold it. Bassett v. Manufacturing Co., 47 N. H. 436; Railway Co. v. Smith, 15 N. E. Rep. 256; 2 Wood, Ry. Law, 794; lHigh, Inj. p. 7, § 7. For the reasons thus indicated I shall enter an order directing a dismissal of the bill, without prejudice to complainant's right to sue at law for the damages which it claims to have suffered.
HAMILTON GAs-LIGHT
&
COKE Co. 'D. CITY OF HAMILTON.
(Oi'1'cuit OOU'1't, 8. D. Ohio,
w: D
January 30, 1889.)
1.
MUNICIPAL CORPORATIONS-GAs COMPANmS-ExCLUSTVE FRANCHISE.
a
Rev.St. Ohio, § 2480, provides that, if a gas company neglects for six months to lay pipes and light streets after reql1irement and notification by the common council of a city or town, the council may erect gas-works for lighting such streets and all other streets not already lighted. Section 2482 provides that neglect by any company to furnish gas to citizens and other consumers; or to the municipal corporation, in accordance with the prices fixed by the counCil. shall forfeit all rights of the gas com{Jany under its charter, and that , the council may proceed to erect, or may empower any person to erect, gasworks for the supply of gas to such corporation and to its citizens. Section 2486 confers upon the council a general power, to be exercised whenever deemed expedient and for the public good, to erect gas-works at the expense of the corporation, or to purchase any gas-works already erected in the corporate limits. Held, that although a company had erected gas works in a city by the authority of the city, and had, complied with all the requirements of the common council, there was llothing in the above sectiol1s which precluded the city from building its own gas-works. A company chartered under the laws of Oh" for the manufacture of gas was authorized by a city to erect works, and occupy its streets for the purpose of laying pipes and gas-mains. The city fixed the price of gas, and directed the manner of laying mains, as it had authority to do; ,and from time to time made contracts with the company for lighting the streets. The last contract made fixed the price of gas for public and private consumption fora period of five years. and required of the company, as a condition precedent. that it should lay pipes for public lightinK along streets ,where for long distances there was no private consumption. H6ld. that as the company did not have the exclusive right to the use of the streets for laying gas-pipes, and the city was under no obligation to purchase gas from the company, DO vested rights
SAME-VESTED RIGHTS.