Kansas City, St. Joseph & Council Bluffs Railway Co. v. Morley , 45 Mo. App. 304 ( 1891 )

GilJj, J.

— Defendant Morley had a contract with the city of St. Joseph for the construction of a sewer along Patee street and running from Sixth street westward to the Missouri river. The plaintiff railroad company has its main track on and along the street next to-the river and under the surface of this street which ■crosses Patee street at right angles it was necessary to build the sewer. Plaintiff’s evidence tends to prove that, when about to begin the construction of said ■sewer, defendant called on plaintiff’s superintendent and requested the plaintiff to bridge up or put in the necessary support for its tracks where the sewer would cross the same, and agreed that he, said defendant, would pay the cost thereof. Plaintiff’s evidence also shows, that it constructed such support for its tracks, and that defendant built the sewer across and thereunder ; but that defendant refused to pay the costs of such bridging and track support; whereupon this action was brought. At the trial the court gave an instruction to the jury that the plaintiff was not entitled to recover. The plaintiff, thereupon, took a nonsuit with leave, •and upon an unsuccessful motion to set the same aside has appealed to this court.

I. It seems that the trial court sustained a ■demurrer to the evidence, and denied plaintiff’s right to recover, on the ground that any alleged agreement by defendant to pay for the support of plaintiff’s tracks, where the same crossed said Patee street sewer was a nudum pactum — an undertaking without ■consideration — and void. In thus holding we are of the opinion that the circuit court did not err. Under the ordinance read in evidence the plaintiff railroad company had simply a right of way — the authority — to lay its tracks and to maintain and operate its railroad ■on the street along the river front. This right of way was subject to a paramount right in the city of St. Joseph to improve said streets, and to construct and maintain sewers therein. The right of the railway company was subordinate to the exercise of a superior right in thelcity. The city has such continuous authority, and it was not, nor could be, bartered away or yielded to the plaintiff or any other corporation or person. National Waterworks Co. v. City of Kansas, 20 Mo. App. 237 ; Kirby v. Railroad, 48 Md. 168. The city of St. Joseph then was fully authorized to construct a sewer along Patee street and across the street occupied by plaintiff’s railroad, and it was incumbent on the plaintiff to protect its own tracks. The city owed it no such duty. And, if the city was under no legal obligation to shore up or sustain the plaintiff’s tricks, then neither was the defendant; for, clearly, he as contractor for the city stood in the place of the city. So then it comes to this : Plaintiff in bridging, shoring up and protecting its tracks where the sewer was being constructed across the same, was simply engaged in a work it deemed necessary to protect its own interest. It was a matter in which the city, or Morley, the contractor, had no concern whatever. It was a work that plaintiff, in accepting a right of way, impliedly'agreed to do, or have done, at its own expense. The doing of this work then was of no benefit or gain to defendant Morley, nor of any injury or disadvantage to the plaintiff, and, hence, furnished no consideration for any promise by defendant. 1 Parsons on Cont. 431, et seq. Judgment affirmed.

All concur.