Kansas City Interurban Railway Co. v. Davis

95 S.W. 881, 197 Mo. 669, 1906 Mo. LEXIS 57

Opinion

VALLIANT, J.

The plaintiff railroad company is seeking by this proceeding to condemn a right of way for its road through certain land of defendants in Jackson county. On filing the petition commissioners were appointed to assess the defendants’ damages and in due time they made their report assessing thé value of the property taken at $800. and the damages to the remaining property at $250; exceptions to the report were filed by defendants, which coming on to be heard, upon the pleadings and evidence, were by the court overruled, and a judgment of condemnation accordingly was entered, from which judgment the defendants have taken this appeal.

There are two points of chief importance presented for our consideration; the first is the insistence that the plaintiff has no corporate franchise to build a railroad between the termini stated in the petition; the second, that the owners of all the lands within the county to be taken for the plaintiff’s right of way, with whom the plaintiff has been unable to agree on the compensation to be paid, are not made parties defendant to the suit.

I. In the petition the plaintiff states that it is a corporation “organized under the laws of Missouri with full power and authority to construct, maintain and operate a standard guage railroad for public use in the conveyance of persons and property in the State of Missouri from a point commencing at or about Forty-eighth street and Main street in Kansas City Jackson county, Missouri, to a point in Swope Park, in said Jackson county, Missouri, in section 11, township 48, range 33, across and over the tract of land hereinafter mentioned; that the general direction of said line of railroad built and to be built by your petitioner from said beginning point is easterly and southerly. ’ ’

The petition then goes on to state that the plaintiff had made and filed in the office of the county clerk a profile map of the route proposed and intended to be used in the construction and operation of £ £ said railway,” etc. Then follows a statement that the defendants are the owners of a certain tract of land through which it is proposed to construct the road and a description of the land. After which it is stated that the general course of the proposed road is northeasterly through this land and that it is ££an extension of the petitioner’s line of railway from said beginning point above mentioned. ’ ’

On the trial the plaintiff to prove its corporate authority to do what it was seeking to do introduced in evidence its charter, from which it appeared that it was organized as a railroad corporation under the laws of this State; that ££Kansas City in Jackson county, Missouri, and Lee’s Summit in Jackson county, Missouri, are the places from which and to which the road is to be constructed, maintained and operated,” and that its length was to be twenty miles.

When this proof was made the defendants moved to dismiss the proceeding for the reason, among others, of the discrepancy between the road proposed in the petition and that authorized by the charter. The motion was overruled and exception taken.

The power given to a railroad company to condemn private property for its own nse is to be exercised within strict limits. The law does not authorize the incorporating of a company with a roving commission to go to any points in the State at will and condemn land in spots. It is required of the parties seeking to be incorporated as a railroad company that they state in their articles of association the places from and to which the road is to be constructed, and beyond the course between the points named (except as the law authorizes branches) the corporation has no right to go. Under a charter to build a road from St. Louis' to Kansas City the corporation would have no authority to build a road from St. Louis to Springfield, nor would a company which is chartered to build a railroad from Kansas City to Lee’s Summit be authorized to build one from Kansas City to Swope Park. The plaintiff’s charter calls for a line approximating twenty miles in length from a point in Kansas City to Lee’s Summit. That does not mean of course a straight line of exactly 20 miles in length, but it does mean a line with only reasonable meanders and reasonably approximating the length named in the charter. And the law contemplates that the company when it exercises the power of eminent domain intends in good faith to build the road its charter calls for. Section 1056, Revised Statutes 1899, requires the company before constructing any part of its road to file a profile map in the office of the county clerk of the route intended to be adopted in that county. That requirement of the statute is for the information of all concerned, especially those whose lands are to be taken, and the law is not satisfied with a profile map of a part or a section of the route in the county.

A railroad corporation has no right to wilfully abandon any portion of its chartered route; the right confered carried the obligation to perform. Section 1161, Revised Statutes 1899, declares that if the com pany does not begin the work of construction within two years and finish it within ten years it shall forfeit its corporate existence and its powers shall cease; then follows a proviso that if the company has in the meantime built a portion of its road it may retain and operate that portion. That proviso comes only as a modification of the forfeiture prescribed in the main body of the section; it is not intended to authorize a partial abandonment of the charter obligation, but it operates only when the condition of forfeiture has occurred and. when without it all corporate rights would cease and the property become forfeited. It is not an authority to proceed to construct, but a permission to hold that which has already been constructed and which but for the proviso would be forfeited.

When a corporation claiming the power to take private property for its own use invokes the aid of a court to carry out its purpose, the court will require it to show without equivocation that it is exercising the extraordinary power within the strict boundaries of the law. The court' will not lend its aid to assist the corporation in such case until the corporation makes an unequivocal showing that it is doing exactly what the law authorizes it to do.

If this corporation had come into court saying in its petition, “We have a charter which authorizes us to build a railroad from a point in Kansas City to Lee’s Summit in Jackson county, covering a line of about 20 miles in length as near as we can estimate it, but we have concluded to abandon that line, and in lieu thereof we purpose to build only a-road from a point in Kansas City to a point in Swope Park in Jackson county and we need the defendant’s property for our right of way, ’ ’ would any one. contend that on that showing the court would entertain the petition? Now, what is the difference in legal effect between a case stated in such a petition as that would be, and the case made by. the evidence under the petition we have before us? Here the plaintiff comes and says in its petition that it has a charter that authorizes it to build a railroad from a certain point in Kansas City to a certain point in Swope Park; so far as the petition shows that is all that the plaintiff has a right to do and it is all that it purposes to do. Yet when it comes to the proof the plaintiff shows a charter that authorizes it to build a road only from Kansas City to Lee’s Summit. Taking the statements in the petition in the light of the charter introduced in evidence, they mean that the plaintiff intends to use this charter for the.sole purpose of building a road to Swope Park and abandon the rest; and so far as the rights of these defendants are affected, if we allow their property to he taken under this proceeding, the effect is the same as if the plaintiff had come into court avowing a purpose to abandon the road its charter calls for.

A charter to build a road from Kansas City to . Lee’s Summit is certainly not the same thing as a charter to build a road from Kansas City to Swope Park; yet if the plaintiff in this case had, at the trial, introduced in evidence a charter authorizing it to build a road from Kansas City to Swope Park, it would have been proof of the averments in the petition of the plaintiff’s corporate power; how then can it he said that a charter to build a road to Lee’s Summit is proof of the same averments?

If plaintiff relies on the fact that Swope Park is on the line of its charter route from Kansas City to Lee’s Summit, then the burden of proving that fact rested on the plaintiff. Opposing counsel in their briefs are not agreed as to whether it is or is not, and we are unable to decide from the evidence.

Even if it appeared in evidence that Swope P’ark was on the line between Kansas City and Lee’s Summit, that would not justify this proceeding because the whole record shows only a purpose to build a road to Swope Park and negatives the purpose of building the road called for in the charter.

Plaintiff in its brief says that it was the duty of the defendants, who are the appellants, to have brought up the profile map that was in evidence, and that since they did not do so the presumption must be indulged that the map proved what the plaintiff offered it in evidence to prove.

Section 1056 requires the railroad company to file a profile map of its route intended or already adopted through the county and that it shall be based on actual surveys. The petition states that “a profile map of the route proposed and intended to be used in the construction and operation of said railway, which profile map shows the actual survey, location and distances of the road bed of said railroad,” etc., following the language of the statute, has been filed. That averment must be understood to mean just what it says, that the profile map shows the “said railroad,” that is, the railroad previously described in that petition, a railroad from Kansas City to Swope Park. And if that is true, and if that map shows the location of the whole road in the county as the statute requires, and as the petition says it does, then it also is evidence of a purpose to abandon the road to Lee’s Summit. Mr*. Winner, a witness for plaintiff and its right of way agent, was asked on cross-examination if there had been any survey to Lee’s Summit, to which he answered: “There has been what we call a preliminary survey, but no location. We have got to make a located map before we can condemn, and to do that we have to make sometimes three or four preliminary surveys.” There was therefore no location, no profile map as the statute requires, of the road called for in the charter.

We construe this petition to mean that the plaintiff’s purpose is to build a railroad from the point named in Kansas City to a point in Swope Park only and that under the charter introduced in evidence it has no.authority to do so.

II. In Railroad v. Nelson, 193 Mo. 297, there was a demurrer to the petition on the ground (among others) that it appeared on the face of the petition that there were other lands in Jackson county to be taken, yet the owners thereof were not made parties defendant. The judgment of the circuit court sustaining the demurrer was reversed because (on this point) we held that although it appeared that those other land-owners were not made parties defendant, yet it did not appear but that they had all agreed with the company as to the amount of compensation to be paid.

In the case at bar it did appear at the trial that there were other persons whose lands in the county were to be taken whose names were known and with whom the plaintiff had not been able to agree, who were not made parties defendant. Plaintiff now says that the defendants tendered no such issue in their answer and were not entitled to interpose that objection.

In the answer filed by defendants they did say: “Defendants also aver that the petition does not aver that the owners of all such parcels of land as lie within the county have been made parties defendant.” That is really in the nature of a demurrer, and as such it falls within the judgment of this court in the Nelson case, above cited. But although it is defective as a plea, in that it fails to state that no agreement could be made with those other parties, yet it is at least an attempted pleading of a material fact, and although defective, yet the defect was not brought to the attention of the court, but it was treated as a good plea and evidence on it without objection was received. In the cross-examination of Mr. "Winner the plaintiff’s right of way agent, he stated that there were other par. ties whose lands in the county were to be taken with whom he had not been able to agree, and was then asked: ‘ ‘ Q. You did not make them parties to this one 'suit here? A. No, sir, we don’t have to make any party except the party we are condemning to each suit.” Proceedings of this kind as to the pleadings and in some other features are not within the Code of Civil Procedure; they are proceedings peculiar and are prescribed by the statute which, although it calls for a petition and prescribes its requisites, does not call especially for an answer. Both parties tried this case on the theory that that was one of the issues in it, one of the objections to the validity of the proceeding on which the defendants were insisting, and it is too late now to say that there was no such issue in the case.

Section 1264, Revised Statutes 1899, which prescribes the course to be pursued when the corporation seeking to condemn cannot agree with the land-owners, requires that a petition shall be filed and prescribes what the petition shall contain, and it says: “to which petition the owners of all such parcels as lie within the county or circuit shall be made parties defendant, by name-, if the names are known, and by the description of the unknown owners of the lands therein described, if their names are unknown.” That is such a plain and unequivocal requirement of the statute that there is no call for judicial interpretation. The question has never been presented- to this court before. The statute in its present form was enacted in 1866. [Laws 1865-6-, p-. 47.]

In Railroad v. Kellogg, 54 Mo. 334, and Railroad v. Carter, 85 Mo. 448, it was held that under this statute non-residents could not be joined with residents in the same petition, but those two decisions on that point .were overruled in Union Depot Co. v. Frederick, 117 Mo. 138.

In the brief for the plaintiff it is argued that the language of the statute above quoted is qualified by the terms of section 1267 of the same article. The whole of that section is contained in these words: “Any nnm ber of owners, residents in tbe same county or circuit, may be joined in one petition, and tbe damages to each shall be separately assessed by the same commissioners.” The argument is that the term “shall be” in section 1264 is to be cut down to “may be” to harmonize with section 1267. These two sections are parts of tbe same original act of 1866. If the purpose of the lawmakers in enacting section 1267 was to qualify the term “shall be” in the previous section they were not driven to writing another section to accomplish that purpose, because the previous section had not passed out of their keeping and they could have made the change by simply erasing one word and substituting another. The argument is that the words “shall be” in 1264 are to be read “may be” to harmonize with 1267. But to do so we would have to cut out of 1264 another sentence which also means “shall be.” The closing sentence in that section is: “It shall not be necessary to make any persons parties defendant in respect to their ownership, unless they are either in actual possession of tbe premises to be affected, claiming title, or have a title to the premises appearing of record upon the proper records of the county.” Why say it shall not be necessary to make persons parties defendant unless, etc., if tbe making of them parties was already not necessary but was a matter left to the will and pleasure of the plaintiff? The word “necessary” in that connection shows that the lawmakers intended ‘ ‘ shall be ” to mean an imperative command.

In reading section 1267 in connection with the sections that preceded it, the only legislative purpose that it seems to have is that it expressly says that all the assessments in one county or circuit are to be made by the same commissioners; that is the only new feature that seems to be introduced by that section. Section 1264 requires all the non-agreeing land-owners in the county or circuit whose rights are to be affected, to be made parties defendant, then section 1266 directs the appointment of commissioners and. requires the damages allowed each land-owner to be stated separately. "We think the fair interpretation of that section means that one set of commissioners is to do the whole work; bnt to the legislative mind it may have occurred that' a case might arise where there would be a. large number of parties defendant along the line from one end of the county or circuit to the other, and the court might be puzzled to know if it was intended in section 1266 to give the whole matter into the hands of one set of commissioners or to appoint more than one set, and therefore section 1267 was inserted to make the point clear. But whatever else may have been the purpose of section 1267 we are satified that it does not cut down the meaning of the terms “shall be” and “necessary” in section 1264. It is no part of our duty to find a reason for the law as given us by the General Assembly; it is sufficient for us to understand what the law is as given and to apply it to the case in hand.

We hold that the petition in this case is fatally defective because it does not include as parties defendant other non-agreeing land-owners in the county whose lands are to be taken for the right of way of plaintiff railroad.*

The judgment is reversed and the cause remanded with directions to dismiss the proceeding.

Brace, C. J., Gantt, Burgess, Lamm and Graves, JJ., concur; Fox, J., concurs in paragraph I and in the result, but expresses no opinion as to paragraph II.