Lane v. Chicago, Rock Island & Pacific Ry. Co. , 1885 Mo. App. LEXIS 378 ( 1885 )

Opinion by

Hall, J.

1. The plaintiff complains of the action of the circuit court in refusing the declarations of law, numbered three and four, asked by him. If they were abstractly correct they should have been given, because there was sufficient evidence to support them. " Wherever the railroad company may lawfully fence, that section (section 2124 of Revised Statutes) applies.” Wymore v. R. R. Co., 79 Mo. 249 ; Edwards v. R. R. Co., 66 Mo. 571.

The only question presented for our consideration under this point is, whether the defendant or its lessor, the Hannibal & St. Joseph Railroad Company, might have lawfully fenced the railroad between Jewell and Leonard streets. This question, we think, has been answered in the affirmative by the supreme court in the case of Wymore v. R. R. Co., supra. The trial court thought differently, basing its opinion, no doubt, upon the fact that in that case the land, through which the railroad rán, was not laid off into lots and blocks, while in this case the land, through which the railroad runs, is as above stated. But as we understand that case, it is based, not upon that fact, but upon the fact that no streets were opened or established through the railroad right of way, across the track, for the distance in proof in that case. This understanding' of ours is strengthened by the quotation, in the opinion in that case, of the following language used by Judge Bliss in the case of Ellis v. R. R. Co. (48 Mo. 282): “But where the corporation lines embrace a portion of an adjacent county not actually laid out as a town, or so laid out that no streets cross the railroad, the reason for the exception does not apply. * * * ” By the case of Wymore v. R. R. Co., supra, as we understand it, it is decided that the railroad company is not required to fence along the sides of its railroad at any point within the limits of an incorporated town, but that it may lawfully so fence its railroad at any place within the limits of such a town, where its railroad is not crossed by streets or alleys already opened or dedicated to the public, and where by so fencing the railroad the public would not be inconvenienced. That we are right as to the meaning of that case is conclusively shown by the language used in the subsequent case of Young v. R. R. Co. (79 Mo. 339): “There are places within incorporated towns where the railroad may fence, as where there are no streets or alleys, and the public travel would not be interrupted by such fence. This matter has been reviewed and the law so settled in the case of Wymore v. Hannibal & St. Joseph R. R., ante, 247.”

It follows, necessarily, from those cases, that where the railroad operated by defendant was not crossed by a street or alley for the distance of 1200 feet, it might lawfully have been fenced, within the limits of the town of Liberty, at that place; and that the court should have given the declarations of law, numbered three and four, asked by plaintiff, in connection with number five, given for him.

2. The only evidence to sustain those declarations of law, numbered three and four, asked by plaintiff, was contained in the map of the town of Liberty.

The plaintiff’s abstract of the record contains the declarations of law, given and refused, and all the admitted facts and evidence in the case, except the said map, to which reference, only, is made. A copy of the map is not in the plaintiff ’ s -abstract. The failure of the abstract to contain such a copy of the map, where the map contained the only evidence to support those said declarations oí law, the defendant contends to be violation of the rules governing the practice in this court.

We do not consider such failure a violation of the rules of this court. Had the facts, shown by the map, been evidenced by oral testimony, it would have been necessary for the abstract to contain such evidence, or sufficient excerpts from it, to support said declarations of law. But the map introduced in evidence, as shown by the copy of it attached to the record, was a lithograph map, and on account of the impossibility to reproduce the map except at great expense, we think the reference contained in the abstract to the page of the record on which the map may be found is a sufficient compliance with the rules. Especially as the map filed with the record is much more satisfactory than any copy other than an exact and expensive copy.

The judgment of the circuit court is reversed and the cause is remanded for further proceedings in conformity herewith.

All concur.