The Legislature by a grant in general terms, Householder v. Kansas City, 83 Mo. 488; Willapplicable alike to all railroad companies, con- iams v. Natural Bridge Plank Road Co. 21 Mo. ferring on them only the right to cross a rail-582; Hannibal Bridge Co. v. Schaubacher, 57 road, did not give defendant any such right as it claims.

the following decree was rendered and entered | Then comes a freight track, used for freight of record in said circuit court:

"This case is submitted to the court without the intervention of a jury, and by agreement of the parties the court assesses the damages to defendant, for and on account of the matters alleged in plaintiff's petition herein, at $1. It is therefore considered by the court that defendant recover of plaintiff one dollar, and its costs before the mayor in the condemnation proceedings, and the plaintiff recover of defendant all costs of the appeal. And it is ordered, adjudged and decreed that the right of way through the lands of defendant for the extension of Fourth Street, as prayed in said petition, be and hereby is vested in the plaintiff, said right of way being bounded as follows" (here follows a description of the ground of plaintiff embraced within said street including the land at the crossing in controversy); and then proceeds: "Said defendant shall have the right to keep and maintain its present tracks and switches upon said lands, and shall have the right to construct such other tracks, switches and turnouts upon said land and across said street when opened, as it may deem necessary for the transaction of its business, subject to such grades as may be established by the city upon said street.'

trains going to and coming from the round for storing transfers, and doing work for the house, and for switching purposes; also a track Barber Asphalt Company. West of Fourth Street there are tracks leading to the electric light works, and two tracks west of same, used for unloading and storing cars. These constitute the tracks of the middle yard. All trains of plaintiff pass through this middle yard on some of the tracks named. The regular trains consist of twelve passenger and twelve freight trains. All freight trains on plaintiff's road are stopped at a place designated as the round house yard, about one mile south of the south end of the middle yard, where the yardmaster receives them, and all trains are made up at that place. These cars are all taken to the middle yard, and are there separated and set for the different transfers, and unloading and loading tracks and freight houses; and all cars received from or delivered to other roads, excepting the Rock Island, are received at and delivered from the middle yard. All plaintiff's main tracks, and all tracks connecting the different yards of plaintiff in St. Joseph, run through the middle yard, and across Fourth Street at the point in controversy."

The witness further testified:

Q. Supposing, Mr. Daily, that this (the ground of the St. Joseph Terminal Railroad Company) represents the yard of the St. Joseph Terminal Company as it is to be built on this The plaintiff since the rendition of the fore- ground between Lafayette Street and Pattee going decree has continued to use and operate Street; state to the court the effect which the these tracks across Fourth Street the same as operation of the yard would have, if any, before. The ground before and since the ex-upon the operation of the middle yard of detension of said street through it, is denominated fendant's road. by the witnesses the "Middle Yard," and is used as a freight distributing yard, in addition to its use as a roadway for plaintiff's trains, both passenger and freight. Its use and how that use will be affected by the operation of defendant's proposed track may be appreciated from the following condensed statement of the testimony of one of the witnesses read with reference to the foregoing map:

W. F. Daily testified: "That he was yardmaster in charge of plaintiff's St. Joseph yards, and as such had charge of their operation; that plaintiff has two freight depots west of Fourth Street and north of the point shown on the map one at the foot of Third Street and one at the foot of Second Street, 200 or 300 feet apart; that the middle yard lies between Mitchell Avenue and Lafayette Street, north and south; that the north track in the middle yard leads to the gashouse for loading and unloading their cars; the next track is a team track; the next a transfer track, used for making transfers to and from the Hannibal & St. Joseph Railroad; the next, the main line passenger track to the Union depot; the next two, eam tracks for loading and unloading cars with teams; that the next track leads to the Badger Lumber Company's yards, used for loading and unloading cars, and for storing transfers; then there are two spurs running into the other yard; also, that there is a main line passenger track leading to the round house, used for specials, and to go to the Consolidated Tank Line Company and the Anheuser-Busch Brewing Company, also used for storing cars.

A. Well, if this Terminal Company's yard was worked to its full capacity as it is shown on the map, it would damage_this_(plaintiff) middle yard one half if not more; the damage would be caused by impeding and delaying its trains in crossing Fourth Street."

A register of the time the Fourth Street crossings were occupied by plaintiff's trains, kept for six days-August 17-23, 1887-showed that its trains were on the crossings on an average some indefinite time during thirteen and a half hours out of every twenty-four.

Beside the condemnation proceedings in which the foregoing decree was rendered, another suit had been instituted by the City of St. Joseph against the plaintiff in said circuit court, and on the trial in this case the defendant offered to prove "that a suit for $90,000 was brought by the city against the Kansas City, St. Joseph & Council Bluffs Railroad for the failure to perform an agreement to locate their machine shops, round houses and other buildings at this station inside the corporate limits of the City of St. Joseph; that that suit was compromised with this condemnation suit as one suit; that the release by the city of the claim upon which this suit was brought, every portion of it, except $1,500, was a part of the consideration for which the Kansas City, St. Joseph & Council Bluffs Railroad Company surrendered the land now in question to the city.

To the introduction of this evidence the plaintiff objected, and its objection was sustained by the court.

By the Constitution and laws of this State

railways are public highways, and railroad companies common carriers thereof; and every railroad company has the right to construct and operate its road between any points in this State; and with its road to intersect, connect with and cross any other railroad (Const. art. 12, §§ 13, 14, Rev. Stat. 1879, § 819), and to construct its road across, along or upon any street with the assent of the corporate authorities of the city in which such street is situate. Rev. Stat. 1879, § 765.

The exercise of these rights is, however, subject to the limitation in the Constitution that "Private property shall not be taken or damaged without compensation, and such compensation must be ascertained and paid to the owner, or into court for the owner, before the property shall be disturbed, or the proprietary rights of the owner therein devested. Const. art. 2, § 21.

The manner in which such compensation is to be ascertained is prescribed in the fifth paragraph of section 765, Revised Statutes 1879, where one railroad company proposes to cross with its track at any point in its route, the track of another railroad company on the grounds of such other railroad company, and the two corporations cannot agree on the amount of such compensation, or the points or manner of such crossing.

with, injure or in any manner affect the operation or maintenance of plaintiff's said tracks." The general question to be determined is, Will the carrying into execution of this purpose of laying its track in said street in the manner stated, and operating its cars thereupon in the transaction of its business as a common carrier, damage the private property of the plaintiff?

There is no question of the appropriation of such property in the case; for, although the plaintiff, as the owner in fee of the two blocks abutting on each side of Fourth Street at the point of crossing, with all the appurtenances thereto belonging, is the owner in fee of the soil over which said street is located, subject only in such a public easement as the city acquired by virtue of the decree recited, and of the tracks located across said street, it is not suggested that the defendant's operations will disturb, or for that matter damage, any of this corporeal property.

The damage, if any, must be to some incorporeal, private property of the plaintiff; and it is claimed that the plaintiff has, if we apprehend correctly the argument of counsel, two of such items of property that will be damaged by the construction and operation of defendant's road across its tracks: first, the easement which it has in said street as an abutting proprietor; and second, the easement which was reserved to it in the decree in the condemnation proceeding.

Where one railroad crosses another in a public street private property is not necessarily taken, and therefore no provision is made for As to the first of these rights, it may be said, ascertaining the amount of damages for prop- if by virtue of that decree Fourth Street, as erty taken in such cases; and in a city of the located across the plaintiff's property, became a second class, as in this case, the power to deter-"public street," in the usual and ordinary acmine the points and manner of crossing is vested in the mayor and common council. Rev. Stat. 1879, § 4644, pp. 9, 34.

ceptation of the term, and as used in the statute, then the plaintiff's easement therein as an abutting proprietor can in no way be damaged by the construction of defendant's road, since during its construction it is not proposed to disturb plaintiff's passway; and afterwards it will have the same free and unobstructed use of the street as it had before, by the same vehicles, drawn upon the same tracks, and everyone that desires will have the same unobstructed ingress to and egress from the plaintiff's abutting prem

So far as we are advised, no law has yet been enacted by the Legislature prescribing the manner in which the amount of compensation shall be ascertained and paid to the owner of private property damaged, but not appropriated to a public use. The constitutional provisions being prohibitive power, however, of such damage until the amount of compensation shall be ascertained by a jury, or board of commission-ises that they had before. ers, and paid to the owner or into court for the owner, must be held to be self enforcing; and a court of equity would enjoin one who proposes continuously to damage private property for a public use without having first made compensation to the owner at least, until such court had caused, by a board of commissioners or a jury as is contemplated by the Constitution, the amount of such compensation to be ascertained and paid to the owner, or brought into court for him.

In this case the defendant company in its answer thus states its purposes:

"That at the time of the filing of the petition herein this defendant was constructing, and intending to construct, its said railroad, along and upon said street, upon the grade of said street, in a careful manner, so as not to interrupt or interfere with travel thereon, and in so constructing its said road intended, when it should become necessary, to build and construct the same across plaintiff's tracks on said street, by placing therein the most modern frogs and appliances for such crossings, of such construction that the same would not interfere

The only damage that can be conceived of, or that is suggested, to such easement, must flow from the operation by the defendant of its track in the street in its business, and the delay plaintiff's trains at times will be subjected to in crossing the street by reason of the occupation in the street by the defendant's trains of the same space at which it desires to and can alone cross with its trains. But that space being in a public street, the defendant's tracks having been authorized to be laid by the city, its use by the defendant for the purposes of passing to and fro over it with its trains is a legitimate use, belonging to the defendant company, as well as to the plaintiff, in common with every other citizen desirous of passing over it with his vehicles; and the damage caused by such delay is of the same character as that suffered by every traveler on a public highway whose movements are retarded by those of another traveler on the same highway-is not peculiar to an abutting proprietor, although by reason thereof he may more frequently have use for and be more frequently delayed in his movements in the street than other citizens; and the

damage resulting from such delay and incon- | yet such a reservation, being inconsistent with venience is not the subject of compensation, the clause of unlimited dedication in the dewithin the meaning of article 2, section 21, of the Constitution.

This brings us to the consideration of the particular and controlling question in the case, and that is, Has the plaintiff company, by virtue of the decree entered in the condemnation proceedings, a private property in that part of Fourth Street which runs through its premises, other than the fee in the soil, and the tracks which are located thereon, upon which we have seen the defendant company proposes to impose only such servitude as they are subject to in a public street, which would be damaged by the operations of the defendant's proposed railroad tracks; in other words, has the plaintiff a right of passway in that street, private and peculiar to itself, not shared in by the general public? If so, then it has private property that may be damaged by the operation of defendant's track. If, on the other hand, it has only a right of passway in the street in common with every other citizen, then it has no private property to be damaged by the exercise by the defendant of its common right of passway conferred upon it by the laws of the State and the ordinance of the city.

This question can be determined only by the terms of the decree; and, as upon its construction the evidence offered by the defendant as to the consideration which led to the agreement by the parties to those terms would shed no light, we find no error in the action of the court in sustaining the objections of the plaintiff to its admission, nor, on the other hand, will we be any better enabled to understand those terms from a consideration of the fact that the damage for the right of way was sessed, by agreement, at the sum of $1.

cree, ought to appear in plain and unmistakable terms, to warrant the construction that such is the meaning of the reservation clause, and such a construction ought not to be adopted if any other reasonable one can be placed on it consistent with the terms of the decree dedicating the street to public use.

Such a construction ought to be given to the decree as will give force and effect to every word in it if possible, and make the decree as a whole consistent, effective and reasonable.

Reading the decree, then, to this end, what is a fair construction of its terms? After condemning the right of way for the extension of Fourth Street through the lands of the plaintiff as prayed for in the petition, the decree provides that the plaintiff "shall have the right to keep and maintain its present tracks and switches upon said lands, and shall have the right to construct such other tracks, switches and turnouts upon said land, and across said street, when opened, as it may deem necessary for the transaction of its business."

The right secured to the plaintiff by these terms to keep and maintain its present tracks, and to lay others if necessary for the transaction of its business, and to run its trains on such tracks in the prosecution of its business on or across that part of Fourth Street described in the decree after the same shall have been opened for public use, is entirely consistent with the use of such street as a public highway by the general public, or by any other railroad company to whom the city authorities might grant permission to lay its tracks on or across said street. There is not a word or exas-pression in the decree that would warrant the inference that the plaintiff was to have any private, exclusive or superior right of passway, either along or across said street, or any other or different right therein than was attainable by any other citizen, with the consent of the city.

Whatever rights the plaintiff has in the street with its tracks, are secured to it by the terms of the decree, whatever considerations may have entered into the agreement of which it was the product. If the proceeding had culminated in a judgment of condemnation in invitum, in the usual and ordinary way, and at the same time or thereafter the city had given permission by ordinance to the plaintiff to lay down its tracks in the street for the pur poses of its business, and thereafter had given a like permission to the defendant company, there could be no question that the rights of each would be equal and co-ordinate in the use of the street, and that the rights of both would be co-ordinate only with the equal right of every other citizen to the use of the street as a public highway; and there would be no question in the case, and no case.

It must be conceded that the clause in the decree dedicating or condemning the ground to public use is as broad and comprehensive as if the proceeding had culminated in such a judgment, and that the reservation from public use of a private right of way across said street from which the public could be excluded, or to which the use of the public could be subordinated by the plaintiff, would be inconsistent with such a dedication.

It may also be conceded, for the purposes of this argument only, however, that the city had the power to accept a limited dedication to the public use, subordinate to such private use;

To hold that there was secured to the plaintiff any right in said street, private, exclusive and peculiar to itself, not shared in by the general public by virtue of this decree, is not only not warranted by anything expressed in the decree, but would be inconsistent with and repugnant to the terms of the decree, expressly condemning the property to public use as a highway.

It is clear, we think, that the plaintiff has no right of passway, either along or across Fourth Street, that is private property; that as to such right of passway it stands in exactly the same situation as the defendant does, or any other railroad company would who obtains permission from the city authorities to lay down its tracks in that street.

As the defendant company has, under the law and the ordinance of the city, the right to lay down its track on Fourth Street, and to cross the tracks of the plaintiff, first having made compensation for any private property belonging to plaintiff that it may be necessary to take or damage in so doing; and it appearing that no private property of the plaintiff will be appropriated or damaged by the defendant in the construction of its railway in said street in the manner in which they propose to construct it,