source: Caselaw Access Project

author: BOND, J. BROWN, J.

license: Public Domain

text:
    HENRY A. TRANBARGER v. CHICAGO & ALTON RAILROAD COMPANY, Appellant.
    In Banc,
    May 10, 1913.
    1. POLICE POWER: Power of State to Contract Away. Tbe police powers of tbe State are divisible into two classes: First, sucb rights of internal regulation of its affairs as do not touch the vital . question of health, morals or property of the people. These the State may part with, because their retention is not indispensable to the preservation of society. Second, all powers of government which are indispensable for the regulation of the public health, welfare and property rights of its people. These the State cannot strip itself of, for to do so would be to render it incapable of carrying out the primary purpose of its creation. The only' restriction upon the exercise of those sovereign rights is that their use must be reasonably adapted to the ends for which they are given, and that they shall not infringe upon any right or privilege guaranteed by the Constitution of the United States.

      2. -: -: Overflowing Lands: State Charter: Prescription: Act of 1907. The fact that defendant railroad company was granted a charter by the State in 1873 and that the laws did not then require railroad corporations to construct outlets . through their roadbeds or embankments for the flow of surface water, did not, by prescription or otherwise, vest defendant with any such vested right as to make the then state of the law a part of an irrevocable contract between it and the State, nor prevent the State in 1907 from enacting a statute requiring such outlets to be constructed. No contract with the State, whether by charter or otherwise, and no prescriptive right, can be invoked to thwart the exercise by the State of its sovereign power and duty to conserve the health, morals or property of the people. The Act of March 14, 1907, Laws 1907, p. 169, which was an amendmeflt to See. 1110, R. S. 1899, was enacted to prevent lands traversed by railroads from being injured by the construction or maintenance of an embankment which would obstruct the flow of water and cause it to flood such lands and destroy the corps thereon; and was, therefore, an exercise of an inalienable police power.
    3. RAILROAD EMBANKMENT: Existence of Drains: Question for Jury. Where there is substantial evidence that there was a drain or watercourse with which the outlets or drains through defendant’s roadbed might have been connected, the question becomes one for the jury, and its findings on the point are conclusive.
    4. -: No Outlets: Flood: Concurring With Defendant’s Negligence. Notwithstanding the waters of the Missouri river overflowed its banks and rose in places to the dimensions of a flood, yet if there is substantial evidence that these abundant waters were not the sole cause of the injury to plaintiff’s crops, but that defendant’s failure to construct outlets through its roadbed concurred with them to cause the injury, defendant is liable.
    5. INSTRUCTIONS: Mutual Error. An error common to both plaintiff’s and defendant’s instructions is not reversible error.
    6. -: Supplied by Defendant’s. An omission or imperfection in an instruction given by plaintiff is supplied by a clear, full and definite instruction given for defendant.
    6. -: Ditches on Both Sides of Railroad Track: Surplusage. Where the undisputed evidence was that plaintiff’s lands which were overflowed were wholly on one side of the railroad embankment or roadbed, and the contention at the trial was as to the duty of defendant to construct suitable drains and ditches on that side, an inadvertent reference in the instruction for plaintiff to defendant’s duty to construct suitable ditches or drains on each side, did not mislead the jury.

      7. RAILROAD EMBANKMENT: No Outlet: Extreme Penalty. Tbe full penalty of $500 imposed by the Act of 1907 for failure by a railroad company to construct outlets through its roadbed for overflow surface waters, should he imposed only in extreme cases, when the accumulation of waters injuring the crops or lands of adjacent land-owners is shown to be certain to occur at frequent intervals, thereby necessitating an immediate construction of such openings; and accordingly, the penalty of $500 imposed by the verdict of the jury, in this case, is reduced to $100.
    8.--: Testimony: Conclusion of Witness. Although the question asked of a witness may call for a conclusion to be found by the jury, yet if his answer and the subsequent questions are confined to specific facts, the examination is not reversible error.
    Appeal from Cole Circuit Court. — Hon. William H. Martin, Judge.
    Affirmed (as modified).

      Scarritt, Scarritt, Jones & Miller for appellant.
    (1) The charter and franchise constitutes a contract between the State and the Louisiana & Missouri River Railroad Company and its privies, that is, its lessee.- United States v. Railroad, 118 U. S. 327. That a legislative grant is a contract has been repeatedly ruled. Terrill v. Taylor, 9 Cranch, 50; Pawlett v. Clark, 9 Cranch. 332; Dartmouth College v. Woodward, 4 Wheat. 656; Charles River Bridge v. Warren Bridge, 11 Peters, 603; Walla Walla v. Water Co., 172 U. S. 9; Plovel v. Kansas City H. R. Co., 79 Mo. 632; State ex rel. v. Gas Co., 104 Mo. 472. It was not the law of Missouri at the time that franchise was granted, and this railroad built thereunder, that the railroad had to construct ditches or drains through, its roadbed to carry off surface water. The statute requiring such drains through railroad beds to provide for surface water -was not passed until 1907. Laws 1907, p. 169. At the time defendant’s franchise was granted and the road built, the law of Missouri was that surface water was a common enemy against which every land-owner, including a railroad, should protect himself as best he could. McCormick v. Railroad, 57 Mo. 433; Paddock v. Somes, 102 Mo. 226; Ready v. Railroad, 98 Mo. App, 467. The law of Missouri at that time must be read into and forms a part of the contract made by the railroad company with the State. The grant of a franchise to a railroad company carries with it the right to make necessary embankments for its roadbed. Benson v. Railroad, 78 Mo. 504. In addition to this, der fendant has acquired a prescriptive right to maintain this solid embankment by reason of the fact that it has been so maintained for over thirty years. Smith v. Sedalia, 152 Mo. 283; Powers v. Railroad, 71 Mo. App. 540; Bird v. Railroad, 30 Mo. App. 365; Ridley v. Railroad, 24 S. E. 730. An attempt by mere statute, without condemnation proceedings or other process of law, to require defendant to reconstruct its railroad at this time and to give an easement through and across its right of way for a watercourse or surface water drainage is, therefore, unconstitutional for two reasons. In the first place, it impairs the obligation of the contract between the State and this railroad, and, in tbe second place, it would be taking defendant’s property without due compensation. Railroad v. Gordon, 157 Mo. 71. (2) There was ho drain or watercourse with which to connect railroad ditches or openings. Under the statute upon which this action is based, Sec. 1110, R. S. 1899, as amended by Laws 1907, p. 169, a railroad company is not required to construct openings or ditches either through or alongside its railroad unless there are other “ditches, drains or watercourses” with which the railroad company may connect its ditches or drains and thereby carry away the water. Field v. Railroad, 21 Mo. App. 600; Collier v. Railroad, 48 Mo. App. 398; DeLapp v. Railroad, 69 Mo. App. 572; Graves v. Railroad, 69 Mo. App. 574. (3) The damage to plaintiff in question was caused by a flood. It was not caused by ordinary surface water obstructed in its usual flow by the construction of its roadbed. Under section 1110 in question a railroad company is required only to provide ditches or drains through and alongside its roadbed sufficient to take care of the usual and ordinary flow of water, and is not required to take care of unusual and extraordinary flows of water, that is, it is not required to provide for a flood. James v. Railroad, 69 Mo. App. 437; Coleman v. Railroad, 36 Mo. App. 476; Ellet v. Railroad, 76 Mo. 518. (4) The statute in question places a liability upon a railroad company only when the natural and usual flow of surface water has been obstructed or made necessary “by the construction of such railroad.” If there is no natural and usual flow of water at a given point at the time a railroad, constructs its roadbed the railroad cannot be held liable for collection of water against its bank at that point if such water is made to commence to flow in that direction long after the construction of the railroad. The statute is a penal statute and must be strictly construed against plaintiff and in favor of the railroad. It does not provide that where a railroad has been built for twenty or thirty years and through some changed condition, that did not exist at the time the road was built, water is made to flow against the railroad embankment, at a certain place, the company may be required under a penalty to reconstruct its roadbed so as to conform to the new condition of things. But the statute only requires these ditches “whenever the drain of such water has been obstructed or rendered necessary by the construction of such railroad. ’ ’ There is no contention in the case at bar that when the railroad was constructed along the place in question there was not any usual or natural flow of water, the draining of which was obstructed by the construction of the road. There is no pretense that any surface water ever flowed or tried to flow across that place until the flood of 1903.

      Charles M. Hay, J. W. Tincher and Silver & Dumm for respondent.
    (1) The defendant attempts to raise a constitutional question by alleging that the act requiring railroad companies to construct the ditches and openings required by the section under which this suit is brought, is an impairment of the contract embodied in the charter and franchise of the lessor of this defendant, granted to it by the Legislature in 1870. We do not deny that the charter and franchise constitutes a contract between the State and the Louisiana & Missouri River Railroad Company and its lessee; but we insist that the State has the right in the exercise of its police power, from time to time, to make requirements and demands of the defendant and other railroad companies in the interest of the public welfare and of the rights of property of others. Gorman v. Railroad, 26 Mo. 441; Matthews v. Railroad, 121 Mo. 298; Blackmore v. Railroad, 162 Mo. 455; Cooley on Constitutional Limitations (6 Ed.), p. 707; Cox v. Railroad, 174 Mo. 595; McFarland v. Railroad, 175 Mo. 433. Defendant cannot assert the right to obstruct the flow of water in this case by virtue of long occupancy of the site of its line of railroad. To acquire a right by prescription there must not only be long occupancy but an adverse occupancy. Smith v. Sedalia, 152 Mo. 297; 6 W. & P. Jud. Def., p. 5521; 19 Am. & Eng. Ency. Law, p. 200; Cox v. Railroad, 174 Mo. 595. (2) The “act of God” must be sole cause of damage. If negligence on the part of the defendant concurs to produce the injury, defendant is liable. Warehouse Co. v. Railroad, 124 Mo. App. 545; Wolf v. Express Co., 43 Mo. 421; Davis v. Railroad, 89 Mo. 340; Prince v. Compress Co., 112 Mo. App. 49. (3) Defendant seems to take tlie position that no openings are necessary unless there is a natural and usual flow of water at a given point at the time a railroad constructs its roadbed. We do not understand it to be necessary that there be a usual, in the sense of a constant, flow of water to render openings necessary. If there be such a lay of the land that, at times of overflow, which must be expected along river bottoms, .water will flow in certain channels or drains, it would clearly be incumbent on the company not to dam up such channels or drains. At the time of the construction of the Chicago and Alton road and through all the intervening years, the lay of the land in question has been the same; a drain along the Missouri river bluffs on the Calla-way side.
    STATEMENT BY THE COURT.
    Plaintiff’s petition states, in substance, that he is the owner oí sixty acres of farming land lying in Cedar City, Callaway county, Missouri, in what are known as the Missouri River bottoms; that it is the habit of said river to overflow these bottoms from the west to the east in times of high water; that defendant’s railroad also extends across the Missouri River bottoms from southwest to northeast and along the east line or boundary of plaintiff’s land; that the roadbed of its track is constructed of a solid earth embankment; varying in height from four to seven feet, and is not provided with culverts, openings or drains of any kind across, through or under the same for the escape of surface water, but constitutes a solid barrier for collecting such waters and causes them to back over and flood the lands of plaintiff, which would not be overflowed except for that obstruction; that the construction and maintenance of defendant’s road in this condition was had and' continued for more than three months before the-day of June, 1908, when the Missouri River overflowed its banks and its water ran west to east across the bottom until it reached the embankment on said defendant’s right of way, which repelled it so that it backed over, across and upon plaintiff’s said land, wholly covering and flooding the same, thereby totally destroying eighteen acres of corn of the value of $515, five acres of potatoes of the value of $450, and twelve acres of wheat of the value of $207, and damaging and injuring plaintiff to the aggregate of said sums; that this loss was suffered by plaintiff solely because of the negligent failure of defendant to construct suitable openings across and through the solid embankment on which the tracks of its railroad were laid, and suitable ditches and drains along the side of its roadbed to connect with an existing ditch which runs alongside the roadbed of the M., K. & T. Railway, whose track intersects and crosses the track and roadbed of defendant, and would have afforded an outlet whereby the waters cast back by the defendant’s embankment would have been carried off into the Missouri River or elsewhere without flooding plaintiff’s land and destroying its products. The petition alleged a second cause of action by reiteration of all the pertinent averments of the first count thereof, and prayed judgment for the statutory penalty of $500 specified in section' 1110, Revised Statutes 1899, as amended by the Act of March 14, 1907, Laws 1907, p.169, under which amended statute this suit was brought.
    The answer of defendant was, (1) a general denial; (2) a plea, of inevitable accident caused by an alleged extraordinary overflow of the Missouri River; (3) the existence of its railroad and embankment in its present condition for a period of thirty-five years, as creating a prescriptive right against any recovery by plaintiff; (4) the unconstitutionality of the act upon which the suit was brought.
    There was evidence, positive or inferential, which tended to support all the allegations of the petition. •The jury returned a verdict for plaintiff on the first count for $950, and on the second count for $500. Defendant appealed, and assigns for error the giving and refusal of instructions, rulings on evidence, and the refusal of the court to declare the statute sued on unconstitutional.
   OPINION.

The first constitutional point insisted upon in appellant’s brief is claimed to arise upon the fact that the railroad, now in the hands of appellant as lessee, was built in 1873 under a State charter, and neither then or during the Act of 1907 did the law require such corporations to construct outlets through their railroad beds or embankments for the flow of surface water, which kind of water was then considered a common enemy to be warded off his premises by any land-owner, provided in so doing he did not collect or accumulate and cast it in a large body or unreasonable quantity upon the property of adjacent land-owners.

BOND, J.

(after stating the facts as above).

If we should concede these assumptions, for the argument, yet we cannot concur in the full conclusion which is drawn by appellant; to-wit, that such a state of the law became a part of the contract between the State and appellant’s lessor (hence appellant as a privy) which was irrepealable or unalterable for any cause or motive whatsoever.

No contract with the State, whether by charter or otherwise, and no prescriptive right can be invoked to thwart the exercise of its sovereign power and duty to take care of the health, morals or property of the people. If there be some phases of the police power which might be bartered away — as the right of taxation for a consideration — certainly there are others — including all the powers that are essential to the protection of the property, health and morals of its people — which no State can hind itself not to exercise by any form of agreement, whatever, and which cannot be obstructed by any lapse of time, or Statute of Limitations. For these reasons the police powers of a State are divisible into two classes: (1) Such rights of internal regulation of its affairs, as not to touch the vital question of health, morals, or property of the people — these, the State may part with, because their retention is not indispensable to the preservation of society; (2) All powers of government which regulate the public health, welfare and the property rights of its people — these, no State can strip itself of, for that would render it incapable of carrying out the prime purposes of its creation. The sanctity and import of this attribute of sovereignty are recognized in the Constitution of this State; to-wit, “The exercise of the police power of the State shall never be abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of indiviuals, or the general well-being of the State.” [Art. 12, sec. 5, Constitution of Missouri.] The only restrictions upon the exercise of this faculty are that its use shall be reasonably adapted to the ends for which it is given, and that it shall not infringe any right or privilege guaranteed by the Federal Constitution. The authorities and cases demonstrating these principles are uniform. [Cooley on Constitutional Limitations (7 Ed.), p. 395, note 2, et seq.; Ibid, p. 832, et seq.; Sloan v. Railroad, 61 Mo. l. c. 30; Mathews v. Railroad, 121 Mo. l. c. 310, 311; Campbell v. Railroad, 121 Mo. 346; Blackmore v. Railroad, 162 Mo. 461; Grannahan v. Railroad, 30 Mo. 546; Peters v. Railroad, 23 Mo. 107; McFarland v. Railroad, 175 Mo. l. c. 431; Cox v. Railroad, 174 Mo. l. c. 604, et seq.; Stone v. Mississippi, 101 U. S. 814; Gas Co. v. Louisiana Light Co., 115 U. S. 650; Railroad v. Mathews, 165 U. S. 1; Butchers’ Union Co. v. Crescent City Co., 11 U. S. 746; 8 Cyc. 863, et seq.]

The statute sued upon was enacted to prevent the property of citizens owning" lands traversed by railroads from being injured by the construction or maintenance of an embankment which would obstruct the flow of water and cause it to flood the farming land and destroy its crops. It was, therefore, an exertion of a police power of the inalienable class, and whether it affected the rights which appellant claimed from its lessor, is wholly immaterial to the validity of the act. We hold that this statute is impregnable to assault from the standpoint of the assumed vested right of the appellant to continue the maintenance and operation of its railroad contrary to its provisions. It did not destroy any vested right of appellant to maintain a solid embankment with no apertures therein for the passage of water, thereby injuring the property of others, for it had no such right, regardless of the charter or contract between the State and its lessor, or of the growth of prescription; and could not have been vested with such right without taking from the State its essential functions as a sovereign power for the purposes defined in our Constitution. [Constitution of Missouri, art. 2, sec. 4.]

Appellant makes some further attacks upon the constitutionality of the statute upon which this action is based, to the effect that the title of the amendatory act (Laws 1907, p. 169) was defective; that the act provided an excessive penalty, and failed to provide to whom it should be paid. All these, if they are not abandoned (as seems to be done in its reply brief) were resolved against the contention of appellant in the cases of Cox v. Railroad, supra; McFarland v. Railroad, supra; and Mathews v. Railroad, supra; and hence need not be again reviewed.

II. Appellant contends that there was no drain or water course with which to connect the railroad ditches or drain or openings under its embankment prescribed by the statute. Whether the weight of the evidence on this point was in favor of appellant is a matter with which we have no concern. There was testimony given by an engineer and some residents of the locality which tended to prove the existence of a drain or watercourse of a well-defined character, with which the railroad might have connected the openings under its embankment referred to in the statute. The question of the existence of that drain was submitted to the jury in an instruction requested by defendant and given by the court. [Record, p. 347.] Granting the evidence on this point was conflicting, the verdict of the jury is' conclusive.

III. Appellant assigns as error, that the injuries suffered by plaintiff were caused by an extraordinary and unprecedented flow of water. There was testimony tending to show that the overflow of the Missouri River in 1908 carried its waters out of its banks in some places, and arose to the dimensions of what might be termed a flood. If this was the sole and only efficient cause of the injury to plaintiff’s property, the rule invoked by appellant might have some application. [Powers v. Railroad, 71 Mo. App. l. c. 543; Ellet v. Railroad, 76 Mo. 518.] Plowever, there was testimony from which the jury were at liberty to infer that this was not the only agency which inflicted the loss complained of by plaintiff, but that the negligence of plaintiff co-operated in that result. The rule is well, settled in this State that, where the negligence of the defendant concurs with an inevitable accident to produce injury, the person so damaged is entitled to recover. [Wolf v. Express Co., 43 Mo. 421; Davis v. Railroad, 89 Mo. 340; Warehouse Co. v. Railroad, 124 Mo. App. 545; Prince & Co. v. Compress Co., 112 Mo. App. l. c. 65.]

IV. Appellant complains of instruction numbered 2 given on behalf of plaintiff in that it did not require the jury to find that there were other ditches, drains or watercourses with which the statutory openings required of defendant could be connected; or, if there were any such, that they were sufficient to carry off the overflow. This point seems to be based on the failure of the court to insert after the words “to connect with other ditches, drains or watercourses” the terms “if any.” The instruction is further complained of in that it did not expressly require the jury to find that such connecting ditches, drains or watercourses would be sufficient to carry off the flood water. And it is thirdly complained, that the instruction submitted to the jury whether appellant constructed suitable drains and ditches “along each side of its roadbed.” Appellant does not set out the instruction in its brief, but a reference to the printed record discloses that its language might give rise to the contentions made by appellant. Hence, the question is, are these informalities or faults in the instruction sufficient ground for reversing this judgment? The record discloses that by instruction No. 8, requested and given on behalf of defendant, the jury were 'specifically directed, that if there was a depression just north of the M., K. & T. Railway track at North Jefferson which might have served as a drain or ditch, and that the Chicago & Alton Railroad might have made an opening in its track leading into such a depression, still they must find for the defendant, if they believed that the flood of water was so great that an opening through defendant’s embankment which should be only large enough to conduct a quantity of water which would have been carried off by said depression, would not prevent the flooding of plaintiff’s land. If there was any error in the instruction complained of, then the same error was contained in instruction numbered 8 given for defendant; and, hence, the defendant is not in a position to secure a reversal on that account. The instruction given for appellant was clear, complete and accurately definitive of its rights, and supplied any omissions and imperfections in that contained in instruction numbered 2 given for plaintiff as to the first criticism made by appellant. As to the.second criticism, it is enough to say that instruction numbered 1 given for plaintiff was supplementary of the omission complained of, and did require the jury to find that the draining of surface water was obstructed or made necessary by the railroad embankment before appellant could be required under the statute to make the statutory openings through its track. Neither as to the third criticism was there any reversible error. For if it be true that the instruction referred to the duty of the railroad to construct suitable ditches and drains on each side of its roadbed, still the undisputed evidence shows that plaintiff’s lands were lying only on one side of the road, and the contention on the trial was as to the existence of such ditches and drains on that side only. We do not think that the jury could have been misled by this inaccuracy, especially in view of the other instructions which confined. the view of the jury exclusively to the matter in issue. We rule this point against appellant.

V. Appellant finally complains that one of the witnesses was permitted to give his conclusions as to the proper place for openings through defendant’s embankment, instead of a statement of the facts upon which they rested. We find by an inspection of the printed record, that when the „ , . , ,, , question was first asked the court overruled the objection of appellant on the ground that an answer to the question might be necessary to convey “a correct idea of the whole situation.” The succeeding question put to this witness, however, required him to state exactly the point or place where such an opening could have been constructed. In reply he did mention the particular places where two openings could have been put, which would have carried off the water. We conclude, therefore, that appellant was not prejudiced by the previous general question since the wit-, ness made a competent answer to a succeeding specific question.

The judgment herein is affirmed.

PER CURIAM. — The foregoing opinion of Bond, J., in Division is adopted as the opinion of the Court in Banc, by reducing so much of the judgment as rests upon a penalty from $50Q to $100.

Brown, Bond, Walker and Paris, JJ., concur; Woodson, J., not sitting; Lamm, C. J., and Graves, J., dissent in toto.

CONCURRING OPINION.

BROWN, J.

I concur in the opinion of Bond, J., in the above entitled cause, except that portion of said opinion which affirms the award of $500 to plaintiff as a penalty for failing to construct the openings in its railroad, as required by Laws 1907, p. 169, now.section 3150, Revised Statutes 1909.

That law prescribes a “penalty of not to exceed five hundred dollars” for failure to comply with its provisions. In my judgment it was the legislative intent that the full penalty of $500 should only be given in extreme cases, when the accumulation of waters injuring the crops or property of adjacent land-owners is shown to be certain to occur at frequent intervals, thereby necessitating an immediate construction of such openings.

The fact that overflow waters had only accumulated and been held upon plaintiff’s land by defendant’s roadbed twice during a period of ten years does not establish a complete defense to that part of plaintiff’s petition counting on tbe penalty, but it does show a strong mitigating circumstance partially excusing' tbe delay in constructing tbe openings in its roadbed.

I am, therefore,' of tbe opinion that so much -of tbe judgment as rests upon tbe penalty should be reduced to $100.

I am partly led to these views by tbe fact that tbe General Assembly of 1909 considered tbe maximum penalty of $500 excessive, and reduced it to $200. [Laws of 1909, p. 359.]

Bond, Faris and Walker, JJ., concur in the views herein expressed.


author: BROWN, J. LAMM, C. J.

text:
    WALTER B. VERSTEEG, Appellant, v. WABASH RAILROAD COMPANY.
    In Banc,
    May 10, 1913.
    1. LIMITATIONS: Continued Use: Street Railroad: Public Street. In order to sustain the plea of the ten-year Statute of Limitations, it must be proven by the preponderance. of the evidence that the improvements which are relied upon to put the statute in motion are of such a nature and kept in such continuous state of repair that the party whose rights are adversely affected may readily observe them at any time he may come upon the property; and, by analogy, it ought to take the same character of improvements and adverse possession to establish a right by a railroad to use a public street, even if the statute were a defense. So where a railroad company began operating trains in the street in front of plaintiff’s property more than ten years before he instituted his suit, but thereafter another owner of property in an adjoining block enjoined defendant from operating trains in the same street, and while that injunction was in force defendant ceased running trains over its track in the street and its track in most places became so covered and obscured by dirt that casual observers did not notice it in crossing the street, and that continued for the greater part of the ten years preceding the filing of this suit to enjoin defendant from operating a railroad in the street, the Statute of Limitations, even if it applied to such a case, is no bar to the action.

      2. STREETS: Legislative and Charter Right of Railroad to Destroy Access to Abutting Property: Compensation. Neither the General Assembly of this State nor the municipal authorities of any city therein have ever possessed the power to authorize the use of a public street in such manner as to destroy rights of egress or ingress to property abutting thereon, without just compensation to the owner of the abutting property.
    3. -: -: -: Irrevocable Grant: Not Used. The rule of law announced in Dartmouth College v. Woodward, 17 U. S. 518, does not apply to an irrevocable grant by the General Assembly of 1851 to use and appropriate the streets of St. Louis without compensation, where the street in question was not used or attempted to be appropriated until long after the adoption of the Constitution of 1875, which prohibits the taking or damaging of private property without compensation to the owner of the property so taken or injured.
    4. RAILROAD IN STREET: Injunction: Laches. The suit of the owner of property abutting on a street, to enjoin a railroad company from operating a railroad therein, is barred by laches, where defendant had been operating its trains in the street for five months before plaintiff took any steps to prohibit the same; there was a city ordinance authorizing defendant to operate its trains in the street and that gave it a prima facie right to do so; the property is used for manufacturing purposes and there is no particular necessity for sidewalks and if they were removed or narrowed there would be no such appropriation of the street as materially damages plaintiff’s abutting property; while plaintiff with full knowledge remained silent defendant had incurred large expense in constructing a freight depot on the adjoining block which will be rendered valueless if defendant should be enjoined from running cars in the street; and it is clearly inferable from' the evidence that plaintiff kept silent while defendant constructed its depot at a cost of $700,000 in the expectation that he could compel defendant to purchase his property at a price in excess of its real value. Plaintiff’s remedy is a suit for damages — much like that of a land-owner who has remained silent while a railroad company, without license or condemnation, constructed a railroad over his land.
    5. -:--: -: Another Successful Suit Involving Same Street. The fact that another owner of property abutting on the same street, some years ago, before the defendant incurred considerable expense in constructing a railway track therein, was adjudged by this court entitled to enjoin the defendant from operating a railroad in said street, is not a sufficient ground for granting the same relief to plaintiff, the facts not being the same.

      6. --: -: -: Each Side Seeking Undue Advantage. ' Where plaintiff waited for five months after trains were run before bringing his suit to enjoin the railroad company from operating its railroad in the street and remained silent while the company erected a freight depot at a cost of $700,000 within one block of his property, in the expectation that, if the street were closed to it, he could compel the company, in order to obtain ground on which to lay its tracks, to buy his property at a price in excess of its real value; and where the company, in a similar spirit of unfairness, encroached upon plaintiffs rights by constructing a sidetrack or “turn-out” within a few feet of one of plaintiff’s buildings, and wilfully used its main track in the street in front of his property for switching purposes, in the expectation of thereby forcing him to sell his property at a price below its value, the equitable pleas of both parties appeal feebly to a court.
    7. -:--: -: Construction of Another Track. But although plaintiffs suit to enjoin the railroad company from operating trains over the existing track is barred because of laches, it will be sustained as to another track about to be constructed without authority; and defendant is enjoined from constructing a second or “turn-out” track in front of plaintiffs property, and from breaking up and making up trains in front thereof on the existing track, and from allowing its trains or cars to remain or stand in front of his property or so near thereto, as to interfere with the passage of wagons used by plaintiff and his tenants over and along the street.
    Appeal from St. Louis City Circuit Court.-Hon. Robert M. Foster, Judge.
    Reversed and remanded (with directions).

      T. Percy Carr for appellant.
    (1) This court lias already held that the "Wabash Railroad cannot operate its railroad in Collins street without practically monopolizing and confiscating said street to the use of said railroad company and that abutting property-owners are entitled to have such operation of said railroad in said street enjoined. Lockwood v. Railroad, 122 Mo. 86. (2) If the character of the street be such that defendant’s track cannot be laid upon the street without hindering the public from using it, then no matter how important to the company that its track should be laid in that street, it cannot be done. Lockwood v. Railroad, 122 Mo. 98; Dubach v. Railroad, 89 Mo. 488; Lackland v. Railroad, 31 Mo. 180; Gaus & Sons Mfg. Co. v. Railroad, 113 Mo. 308; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Sherlock v. Railroad, 142 Mo. 172; Corby y. Railroad, 150 Mo. 457; DeGeoffroy v. Railroad, 179 Mo. 698; Lumber Co. v. Railroad, 129 Mo. 455; 2 Elliott on Roads & Streets (3 Ed.), sec. 888. (3) Nor is it competent for a city to authorize such use of a street dedicated as a street as will destroy it as a thoroughfare for the public use. Lockwood y. Railroad, 122 Mo. 98; Dubach y. Railroad, 89 Mo. 488; Lackland v. Railroad, 31 Mo. 180; Gaus & Sons v. Railroad, 113 Mo. 308; Schopp v. St. Louis, 117 Mo. 131; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Sherlock v. Railroad, 142 Mo. 182; Corby y. Railroad, 150 Mo. 457; DeGeoffroy y. Railroad, 179 Mo. 698. (4) The purchase by the defendant of the property and franchises of the North Missouri Railroad did-not exempt it from the provisions of its own charter. The most that it acquired by the purchase of the North Missouri in this connection was the right to continue the use of such tracks as were laid by its predecessor during the time it had a right to exercise its franchises. This new branch or spur was constructed by itself and its right to do so must be found in the law under which it was created. Lockwood v. Railroad, 122 Mo. 96; Owen v. Railroad, 83’ Mo. 459; St. Louis v. Railroad, 114 Mo. 25; R. S. 1909, sec. 5123. (5) The right of the owner of property abutting on a public street to free and unobstructed access to his property by means of such street is as much property as the street itself, and he cannot be deprived of the one without compensation any more than the other. Lackland v. Railroad, 31 Mo. 180; Gaus & Sons v. Railroad, 113 Mo. 315; Schopp v. St. Louis, 117 Mo. 131; Heinrich v. St. Louis, 125 Mo, 424; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Corby v. Railroad, 150 Mo. 457; DeGeofroy v. Railroad, 179 Mo. 698.

      Wells H. Blodgett and J. L. Minnis for respondent.
    Tbe facts in the record distinguish the case at bar from Lockwood v. Railroad, 122 Mo. 92. (1) The evidence does not support the allegation in plaintiff’s petition, viz.: that defendant had not at the time the petition was filed “commenced.operating locomotives, cars and trains” on the branch railroad in front of plaintiff’s property. The proof showed that plaintiff’s grantors acquiesced in the construction of the branch railroad and in the maintenance and operation thereof for more than eleven years, and that plaintiff stood by and acquiesced in the maintenance and operation thereof from Nov. 13, 1903, to Oct. 7, .1904, when his petition was filed, during which time defendant expended large sums of money on said railroad and depot and terminal's connected therewith. Plaintiff and his grantors were thereby guilty of laches, and are now estopped and precluded from asserting the right to the injunctive relief prayed for. 1 High on Injunctions (3 Ed.), secs. 7, 618, 630, 636, 643, 756; 2 Waterman’s Eden on Injunctions (3 Ed.), p. 274; 2 Lewis on Eminent Domain, sec. 634, p. 1360; Planet v. Railroad, 115 Mo. 613; Dodds v. Railroad, 108 Mo. 581; Provolt v. Railroad, 57 Mo. 256; Stammer v. Roberts, 9.0 Mo. 683; Sherlock V. Railroad, 142 Mo. 186; Roberts v. Railroad, 158 H. S. 10; Railroad v. Murray, 87 Fed. 648; Kakeldy v. Railroad, 80 Pac. 205; Railroad v. Strauss, 38 Md. 237; Wood v. Sutcliff, 2 Sim. N. Rep. 163; Burkham v. Railroad, 122 Ind. 344; Porter v. Railroad, 125 Ind. 476; Orne v. Friedenberg, 143 Pa. St. 567; Good v. Fire Brick Co., 224 Pa. St. 496; Wolford v. Fisher, 84 Pac. 850; Duffy v. Mayer, 79 Atl. 603. (2) The evidence does not support the allegation in plaintiff’s petition, viz.: "That by construction, maintenance and operation” of the branch railroad in front of plaintiff’s property said property “will be greatly depreciated and damaged in its selling and rental value, and that such damage mil differ in degree and kind from those that will accrue to other members of the community and to the public.” The failure of proof with respect to this allegation is fatal to plaintiff’s case. Elliott on Roads and Streets, p. 519 ;Rude v. St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85; Nagle v. Railroad, 167 Mo. 89; Kucket v. Railroad, 163 Mo. 260; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560; Grover v. Cornet, 135 Mo. 21; Coonan v. St. Louis, 97 Mo. 92; Osborn v. Railroad, 37 Fed. 830. The obstruction of the street, necessarily occasioned by the work of constructing defendant’s depot and tracks was not such damage to the plaintiff as will entitle him to an injunction. Nagle v. Railroad, 167 Mo. 98. (3) "Whatever right of action accrued on account of the construction and operation of the branch railroad in the street in front of the property described in the petition accrued to McLean and the Johnson Land Co., the owners of said property in June., 1891, when the branch railroad was constructed. 2 Lewis on Eminent Domain, sec. 625, p. 1337, and sec. 635, p. 1416; Robert v. Railroad, 158 U. S. 1; Powers v. Railroad, 158 Mo. 87; Boyce v. Railroad, 168 Mo. 583; Van Hozier v. Railroad, 70 Mo. 145; Buentin v. Railroad, 50 Mo. App. 414; Autenreith v. Railroad, 36 Mo. App. 254. Such right of action is now barred by the Statute of Limitations. DeGoofroy v. Railroad, 179 Mo. 698; Powers v. Railroad, 158 Mo. 87; FranHe v. Jackson, 30 Fed. 398; Scarritt v. Railroad, 148 Mo. 676; 2 Herman on Estoppel, sec. 948. (4) • Defendant owned at the institution of the suit a right of way in the street in front of plaintiff’s property, and if the injunction be granted defendant will be deprived of its property without due process of law. The State, by the charter of the North Missouri Railroad, granted to that company the right to build branch railroads along narrow streets like Collins street. Railroad v. St. Louis, 66 Mo. 228. The judgment in the case of State ex rel. v. St. L., K. C. & N. Railroad, is conclusive evidence between plaintiff and defendant that said company acquired said right formerly enjoyed by the North Missouri Railroad. 2 Black on Judgments (2 Ed.), sees. 534a, 549, 607. The charter of the North Missouri Railroad is a contract within the meaning of the clause of the Constitution of the United States, which provides th’at no State shall impair the obligations of contracts, and the right claimed is property within the meaning of the guaranty that property shall not be taken without due process of law. The Legislature, therefore, had no power to impair such contract or take such property. Dartmouth College v. Woodward, 4 Wheat. 627; Bank v. Sharp, 6 How. 319; Birmingham Bridge, 2 Wall. 73; Pennsylvania College Cases, 13 Wall. 190; Davis v. Gray, 16 Wall. 203; Stone v. Mississippi, 101 U. S. 816; Railroad v. Texas, 170 U. S. 243. The North Missouri Railroad had power to mortgage and convey said right as other property. Williamette County v. Bank, 199’ U. S. 191. This court is bound by the interpretations placed upon the above clauses of the Constitution by the Supreme Court of the United States, notwithstanding the contrary decision in the Lockwood case. U. S. Constitution, Art. 6;- State v. Warner, 165 Mo. 639. Ordinance 15816 merely manifested the consent of the city to the location of the railroad and is valid for that purpose. Defendant acquired a right of way in front of the property described in the petition from the abutting owners by adverse user. Boyce v. Railroad, 168 Mo. 583.
   BROWN, J.

Action to enjoin defendant from operating a railroad in front of plaintiff’s property in the city of St. Lonis. From a judgment for defendant, plaintiff appeals.

Plaintiff owns real estate abutting on both sides% of Collins street, between Carr and Biddle, in St. Louis City.

Collins street runs north and south, and is only forty feet wide where plaintiff’s property abuts thereon. This property is improved, and is used by plaintiff’s tenants for manufacturing and storage purposes.

That part of the city where plaintiff’s property is located is devoted almost exclusively, to manufacturing purposes. In his petition plaintiff alleges that there is a' sidewalk eight feet wide on each side of Collins street, leaving a space only twenty-four feet wide from curb to curb; “that the defendant has constructed and laid down in said roadway of Collins street between Biddle street and Carr street and in front of said property of the plaintiff, a single railway track, but has not up to the present time commenced operating locomotives, cars and trains thereon, but that it now threatens and proposes so to do unless restrained by the process of this court. That the defendant is now engaged in laying and constructing a second railway track on the west half of the roadway of Collins street in front of the property of plaintiff above described and proposes and threatens upon the completion of said second track to operate locomotives, cars and trains thereon, unless restrained as aforesaid by the process of this court.” That the construction and operation of said railway tracks or either of them will exclude all vehicles and other traffic from that part of Collins street in front of plaintiff’s property and greatly depreciate the value of said property for sale or rental purposes; wherefore plaintiff demands that defendant be enjoined “from constructing’, maintaining and operating its said railway tracks on Collins street between Carr and Biddle streets, and for all other proper relief.”

In its answer to this petition, defendant admits that it is operating a through line of railroad in front of plaintiff’s property on Collins street; and as a bar to plaintiff’s action, alleges that it has been operating said railroad continuously for a period of more than ten years.

Defendánt further admits that at the time this suit was instituted, it was engaged in laying a second railway track, or “turn-ont,” in front of plaintiff’s property; but asserts that since the filing of said action, defendant has removed its second track or “turn-out” and does not intend to operate the same hereafter.

Defendant denies that the operation of its single track of through railroad will exclude vehicles and the public generally from Collins street or depreciate the value of plaintiff’s property.

As a further defense, defendant contends that it is the purchaser and owner of all the charter rights and privileges granted to the North Missouri Railway Company by the special act of the General Assembly of Missouri on March 3, 1851, which charter rights being an irrevocable contract with the State, authorized said company to use and appropriate the public streets of St. Louis City without being liable to interference by the courts or any other power whatsoever.

Defendant also pleads an ordinance of the city of St. Louis enacted in September, 1890, granting to it the privilege of constructing and operating a railroad on Collins street.

As a further defense, defendant alleges that plaintiff, with full knowledge that defendant intended to use Collins street in front of plaintiff’s property as a through line for running its freight and passenger trains, allowed and permitted defendant to expend large sums of money without objection in purchasing ground for and constructing a freight depot on the block situated immediately north of and adjoining plaintiff’s property. That during the construction of said depot, defendant continually operated freight trains in front of plaintiff’s property, and that by acquiescing in and permitting defendant to incur great expense in constructing said depot, which depot would be a total loss to defendant if this injunction be granted, plaintiff is estopped from maintaining this action.

The evidence and admissions of the parties prove that defendant constructed the track and began operating a railroad on Collins street in the year 1891.

Defendant’s track was laid and trains operated at that time not only in front of the property now owned by the plaintiff, but also in front of the blocks immediately north thereof. The defendant’s road had been operated only a short time in 1891 when one Lockwood, who owned property in the block immediately north of plaintiff, enjoined defendant from operating trains in front of his property in said street. [See Lockwood v. Wabash Railroad Company, 122 Mo. 86.]

Prom and after the final judgment of this court in the Lockwood case, the defendant ceased running through trains on Collins street until the early part of 1903; but there is much evidence that during the whole of the period between 1901 and 1903 the St. -Louis Bridge and Terminal Company occasionally ran trains on defendant’s track on Collins street. This track was also kept in some degree of repair by persons jointly employed by the defendant and the Terminal Company. There is a sharp conflict between the testimony of the plaintiff and defendant as to the condition of defendant’s track in 1902 when plaintiff purchased the property which he claims is injured by the operation of defendant’s road.

Plaintiff testified that defendant’s track was so completely covered with dirt when he purchased his property in 1902 that he did not observe the track or know of its existence, though he admits he was fairly familiar with the condition of the streets in that locality during a period of twenty years next prior to his purchase. Other witnesses for plaintiff testified that the track was covered too deeply with dirt to run cars over, and could only be seen at street crossings where wagons passed over it.

However, this feature of the evidence is not important in view of the conclusions we have reached on another issue in the case.

The allegation in plaintiff’s petition that defendant had not commenced the operation of locomotives and cars in front of his property on Collins street at the time of the institution of this action, is not supported by any evidence in the case. Plaintiff himself testified that a great many cars had been operated on both the main track and “turn-out” in front of his property before he instituted this action. He gave it as his opinion that the defendant had been hauling building material in front of his property for sixty days before the present suit was instituted, but when pressed to fix the date when the operation of the road was begun in front of his property, he seemed to have no definite recollection of the date, but was positive that" the switching and unloading of freight in front of his property both before and after the commencement of his suit had worked great inconvenience and loss to his tenants and some loss to him .in the way of rents.

According to the testimony of Mr. Pryor, vice-president of the defendant company, who seemed more disposed to testify frankly and correctly than any other witness, the construction of defendant’s freight depot on the block adjoining plaintiff’s property was begun early in May, 1904. A decided preponderance of the evidence is to the effect that the construction of the depot was begun about May 1, 1904, and that during its erection defendant daily operated and switched many cars in front of plaintiff’s property in bringing in material for said depot and in hauling freight for the public.

Mr. Pryor' admitted that while defendant’s depot and sidetracks were in course of construction it wrongfully unloaded much freight in front of plaintiff’s property, to the inconvenience and annoyance of his tenants. It is satisfactorily proven that the daily operation of trains in front of plaintiff’s property and the construction of defendant’s freight depot began not later than May 1,1904, and that this action was not begun until October 7, 1904. It further appears that the construction of defendant’s depot was known to plaintiff at the time work was begun thereon.

It was also apparent to plaintiff while the depot was in course of construction that said depot would be valueless to defendant if it was not allowed to operate its trains on Collins street in front of plaintiff’s property. Defendant expended about $700,000 in constructing its freight depot before plaintiff made any objection to the operation of cars in front of his property.

These facts constitute the most important part of the evidence.

In the year 1902, and about the. same time that plaintiff purchased his property on Collins street, the defendant secretly purchased at a cost of $2,000, 000 the two blocks lying just north of plaintiff’s property. Defendant seems to have had a two-fold purpose in this purchase; first, to lift the Lockwood injunction, and, second, to procure ground for a depot and sidetrack for switching and unloading freight.

It is charged in defendant’s answer that plaintiff knew of defendant’s purchase for the depot and sidetrack purposes, and having failed to inform defendant of his unwillingness to permit trains to be operated or Collins street, is barred from maintaining this action. This part of defendant’s answer is not sustained by tbe evidence, which is all to the effect that defendant’s purchases were secretly made in the names of individuals and that plaintiff received no notice of defendant’s intention to erect a depot until a very short time before its construction was begun.

Plaintiff introduced an ordinance of St. Louis City which requires an eight-foot sidewalk on each side of all forty-foot streets. His testimony also shows that defendant’s cars are about ten feet wide, leaving only about seven feet of space between defendant’s cars when in operation, and the sidewalks. That the usual width of freight wagons is eight to nine feet, so that when defendant’s trains are in operation, there is not sufficient room on Collins street for plaintiff’s tenants to haul freight without driving on the sidewalks; and that even then their wagons are often pocketed between a row of telegraph poles standing along the curb of the sidewalks.

Plaintiff testified that his tenants were so annoyed and injured by the operation of trains in front of his property, that he was compelled to reduce the rent to some of them. The exact amount of rent which plaintiff has lost by reason of defendant’s acts is not clear; but he states generally that the rental value of his property has been reduced about twenty-five per cent by the operation of defendant’s trains. There was some evidence on the part of defendant that the value of plaintiff’s property had been increased by the construction of defendant’s depot.

Plaintiff testified that he purchased his real estate -on Collins street “at a bargain” in the year 1902, paying for the land and improvements subsequently made thereon, about $150,000; and that he estimated the value of said property at the time of the trial in December, 1904, at $400,000.

Plaintiff admits that the operation of defendant’s road in front of his property would increase its value if switches could be laid in front thereof to accommodate his tenants in loading and unloading freight; but gives it as his opinion that there is not room for laying such switches.

It, however, appears by plaintiff’s own evidence that he owns a piece of property further north on Collins street not embraced in this action in front of which a switch is laid for the accommodation of his tenants. The sidewalks in front of this last named property have been abolished, thereby making the street wide enough for three railroad tracks; but plaintiff did not show how or why the sidewalks were abolished at that particular point.

The testimony of plaintiff is inconsistent on some important points. For instance, he says the city will not permit switches or sidewalks to be so laid as to allow cars to be switched and stand in front of plaintiff’s buildings; yet he admits that most of the switches or sidetracks in the city are constructed in that manner. It further appears that plaintiff lost one desirable tenant because he could not or did not furnish it a switch for unloading freight in front of his property.

OPINION.

I. The defendant’s plea of the ten-year Statute of Limitations is not sustained by the evidence. It did begin operating trains in front of the , . . ,.™ ,. property now owned by plaintiff more than ten years before the institution of this suit, but while the Lockwood injunction was in force it ceased running trains over its track on Collins street; and its track in most places became so covered and obscured by dirt that the casual observer would not have noticed it in crossing the street.

"Whether or not the ten-year Statute of Limitations applies to an action of this kind, we do not decide; but the rule is that where the Statute of Limitations affecting real estate or rights therein, is pleaded as a defense, it must be proven by a preponderance of the evidence that the improvements which are relied upon to pnt the statute in motion, are of such a nature and kept in such continuous state of repair that the party whose rights are affected can readily observe the same at any time he may come upon the property where the improvements have been made. [Himmelberger-Harrison Lumber Company v. McCabe, 220 Mo. l. c. 181 and 182.]

By analogy, it ought to take the same character of adverse possession to destroy a right to use of the street which it requires to bar a title to real estate.

II. Regarding the rights which defendant claims to have acquired under the ordinance of St. Louis permitting it to construct and operate a-railroad on Collins street and the alleged charter right granted by the State to the North Missouri Railroad Company in 1851, we are of the opinion that neither the General Assembly of this State nor the municipal authorities of its cities have t /er possessed the power to authorize the use of a public street in such manner as to destroy rights of ingress and egress to property abutting on such street without compensation to the owners of such property.

The case of Dartmouth College v. Woodward, 17 U. S. 518, is cited and relied upon by defendant to sustain its plea of an irrevocable grant to- use Collins street for railroad purposes without compensation. The rule of law announced in the Dartmouth College case does not apply in this case, for the reason that if any franchise was granted by the State to construct and operate a railroad on Collins street by the General Assembly in 1851, the road was not constructed until after the taking effect of our present Constitution, which prohibits the taking or injury of private property without compensation to the owner of the property so taken or injured. [Lockwood v. Wabash Railroad Company, 122 Mo. l. c. 96.]

It is also manifest that the city of St. Louis possessed no power to authorize the taking or injury of private property without compensation to the owners thereof.

In the opinion of the writer, the rule of law as to irrevocable grants of power and exemption from liability, announced in the Dartmouth College case, is fundamentally unsound, and wholy inconsistent with the reserved rights of a free State “to alter or abolish its Constitution or form of government” when a majority of its electors so desire. [Section 2, article 13, Constitution of Missouri adopted in 1820.]

III. The defendant’s plea of laches on the part of plaintiff in bringing this action, appeals to us with more force than any other defense interposed.

Plaintiff’s allegation that defendant was threatening to operate trains in front of his property on Collins street at the time this suit was instituted, “but had not begun the operation of. such trains,” is not sustained even by plaintiff’s own testimony. A clear preponderance of the evidence establishes the fact that defendant had been operating its trains on Collins street during a period of at least five months before plaintiff took any steps to prohibit the same.

The ordinance of St. Louis City authorizing defendant to operate trains on Collins street, gave a prima facie right to defendant to operate its through trains on that street in front of plaintiff’s property until plaintiff saw fit to complain of the obstruction of said street caused by the operation of such trains.

Plaintiff’s delay in bringing this action might not act as' a bar to the relief sought, if defendant had not incurred large expense in constructing its freight depot while plaintiff remained silent and inactive.

Plaintiff had full knowledge that defendant was constructing a freight depot on the block just north of his property at a cost of $700,000. Plaintiff had further knowledge that said depot would be rendered valueless to defendant if it should be enjoined from running cars on Collins street in front of plaintiff’s property. Possessing this knowledge, and having neglected to give defendant notice that he objected to the operation of its trains' on Collins street, plaintiff is in a position very much like a land-owner who with knowledge that a railroad is being constructed across his land in good faith, fails to object to the appropriation of a right of way across his property under color of title until a large amount of money has been expended on such construction.

In cases of the character last described, the landowner is usually restricted to his right of action for damages in taking part of his land for a right of way and the resulting injury to the remainder of his property not so taken. [Provolt v. Railroad, 57 Mo. 256; Kanaga v. Railroad, 76 Mo. 207; Dodd v. Railroad, 108 Mo. 581; Roberts v. Northern Pacific Railroad Company, 158 U. S. l. c. 11; 1 High on Injunctions (4 Ed.), sec. 643.]

In the case of Planet Property and Finhncial Company v. Railroad, 115 Mo. 613, we held that where a party claiming to be injured by the construction of a railroad across a street below the grade thereof, failed to take steps to prevent the construction of said road until it was completed, he would not afterwards be allowed to enjoin its operation.

Plaintiff’s learned counsel zealously insists that as Collins street was forty feet wide where Lockwood successfully enjoined the operation of trains in 1892, it must necessarily follow . ** that as said street is only forty feet wide in front of the property of plaintiff embraced in this suit, tbe decree should have been in his favor.

Upon carefully reading the Lockwood case, we find that at the time said suit was instituted and decided, the defendant was operating a double-track in front of Lockwood’s property, which left a space of only three feet and eight inches between the sidewalks in front of Lockwood’s property and its trains when in operation (122 Mo. l. c. 93), instead of a space of seven feet, as in the case at bar.

However, the main point of difference between the present action and the Lockwood case is that the defendant incurred no considerable expense in constructing its track in front of Lockwood’s property in 1891, and it is not charged or proven in that case that defendant had with Lockwood’s knowledge, and without objection on his part, made large expenditures for depot or other purposes, which would be lost by restraining it from running its trains.

The latest case involving the right to enjoin the operation of railroad trains on the public highways, which has come before this court, is Seibel-Suessdorf Copper & Iron Manufacturing Company v. Railroad, 230 Mo. 59, wherein it was held that a railroad company would not be enjoined from laying its tracks and operating a railroad on a public street where the space between the sidewalks and the railroad company’s trains when in operation was ten feet and six inches.

Because Lockwood was allowed to enjoin the operation pf trains in front of his property on Collins street, it does not necessarily follow that every other person owning property abutting on said street may have the same relief.

To secure such relief, the plaintiff must prove that he will be injured, and he must proceed in a timely manner, to invoke successfully such extraordinary remedy.

That record indicates that plaintiff is not necessarily injured to the extent he pretends to be. It is a well known fact, of which we take judicial notice, that there is not so much necessity for sidewalks, particularly wide sidewalks, in streets where, as in this case, the abutting property is used for manufacturing and storage purposes as in localities devoted to residence or retail purposes.

The width of sidewalks is a matter regulated by city ordinance, and there is no sound reason for supposing that the plaintiff cannot secure a reduction in the width or a vacation of the sidewalks in front of his property by applying to the legislative department of St. Louis for that purpose.

The fact that he can do so is made manifest by the evidence that the sidewalks have been abolished on both sides of Collins street at a point further north on that street where plaintiff owns other property and in front of which he does not object to the operation of defendant’s trains. By securing the vacation of one-half, or four feet of the sidewalks in front of his property, and the removal of the telegraph poles to the curb of the sidewalks, as thus changed or modified, plaintiff will have sufficient room to drive freight wagons in front of his property while defendant is operating its trains, and yet leave a fairly good sidewalk for footmen to reach his property.

After a careful inspection of the whole record, we think it very probable that the plaintiff kept quiet and made no objection to the running of trains in front of his property while defendant was expending $700,000 m constructing its freight depot, believing that he could afterwards by this extraordinary action, compel defendant to purchase his property at a price in excess of its real value.

We think that defendant in a similar spirit of unfairness, encroached upon the rights of .plaintiff by constructing a sidetrack or “turn-out” within a few feet of one of plaintiff’s buildings, and willfully used its main track in front of plaintiff’s property for switching purposes, probably intending thereby to annoy plaintiff and force him to sell his property to defendant below its value.

The intent we have thus ascribed to the parties, is not fully proven, but it is clearly inferable from the evidence; consequently the equitable pleas of both parties appeal to us somewhat feebly.

We find that substantial justice will be administered by denying plaintiff’s prayer for an injunction restraining defendant from operating its through trains on Collins street in front of plaintiff’s property; without prejudice, however, to plaintiff to institute and maintain against defendant an action for such damages as he has sustained, if any, by the operation of such trains, and by the switching of cars in front of his property.

The plaintiff is entitled to an injunction restraining defendant from constructing or operating a second track or “turn-out” in front of his property and from making up and breaking up trains in front of plaintiff’s property and from allowing its trains or cars to remain or stand in front of or so near plaintiff’s property as to interfere with the passage of wagons used by plaintiff and his tenants or employees over and along Collins street.

Mr. High in the fourth edition of his work on Injunctions, vol. 1, sec. 630, says:

“Where a railway company has constructed its tracks over complainants’ premises without authority, and is about to construct another track over the same premises, also without authority, and without having made compensation therefor to the owner, an injunction will be granted to restrain the construction of the second track. But in suck case, the first track being already completed , and the cars running thereon, an injunction will not be granted to prevent the cars from running when an action of ejectment and for mesne profits will afford ample relief.”

The judgment of the circuit court is reversed, and that court is directed to enter a new judgment in conformity with our views as herein expressed.

The plaintiff having been granted part of the relief prayed for in his petition, the costs of this action are taxed against defendant.

It is so ordered.

IN BANC.

PER CIJRIAM. — This ease coming into Banc, the foregoing opinion of Brown, J., filed in Division Number Two, is adopted as the opinion of the court.

All concur except that Lamm, C. J., and Paris, Bond and Graves, JJ., disapprove that part of the majority opinion which criticises the Dartmouth College case; Lamm, C. J., filing separate opinion.

SEPARATE OPINION.

Per Lamm, C. J., Concurring In Result But Not Concurring In The Criticism Of The Dartmouth College Case.

LAMM, C. J.

My vote is to concur in the result reached in the opinion of my learned brother Brown— this, for reasons stated by him and for others appearing to me in this record. But I do not concur in his criticism of the Dartmouth College case.

If we have outgrown the doctrines of that great case and they are now to be judicially repudiated by this court, as applicable to matters within its jurisdiction, it should only be done in some case in which it is necessary to call them in question, and then only on full consideration and on reasons vouching for themselves as conclusive. It is a landmark of the law, often and often relied on by us, and it ought not to be either doubted or removed except on a new and complete survey. [Duet. XXVII: 17.]