Tranbarger v. Railroad. 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 Testimony: which they rested. We find by an inspec tion 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 Tranbarger v. Railroad. "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 witness 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 $500 to $100. Brown, Bond, Walker and Faris, 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 defend Versteeg v. Railroad. ant's roadbed twice during a period of ten years does not establish a complete defense to that part of plaintiff's petition counting on the penalty, but it does show a strong mitigating circumstance partially excusing the delay in constructing the openings in its roadbed. I am, therefore, of the opinion that so much of the judgment as rests upon the penalty should be reduced to $100. I am partly led to these views by the fact that the General Assembly of 1909 considered the 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. 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. Versteeg v. Railroad. 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. 7. : Versteeg v. Railroad. 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 plaintiff's 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. : -:Construction of Another Track. But although plaintiff's 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 plaintiff's 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 has 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 us. |