Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co.
| Decision Date | 02 June 1890 |
| Citation | 13 S.W. 822,101 Mo. 192 |
| Parties | The Belcher Sugar Refining Company v. The St. Louis Grain Elevator Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.
Reversed and remanded.
James O. Broadhead for appellant.
(1) The city of St. Louis had authority, under its charter, to make the lease set up by defendant in its amended answer, of the date of January 7, 1885. City Charter, art. 3, sec. 26 subdiv. 2; Cooley on Const. Lim. [2 Ed.] pp. 521-553; Nurse v. Railroad, 21 Ill. 522; West v Bancroft, 32 Vt. 367; Kelsey v. King, 32 Barb. 410; Railroad v. Applegate, 8 Dana, 289; St. Louis v. Elevator Co., 2 Dillon, 70; Building Ass'n v. Telephone Co., 88 Mo. 369; Acts, 1863, Adjourned Session, p. 223; Gould on Waters, p. 214, sec. 118; Munn v. Illinois, 94 U.S. 113-151; Ferry Co. v. Hankey, 31 Md. 348; Keokuk v. Packet Co., 32 Iowa 80; Railroad v. Ellerman, 105 U.S. 166; Barney v. Packet Co., 4 Dillon, 324. (2) The St. Louis Grain Elevator Company has full authority, under its charter, to accept the lease from the city of St. Louis. Acts, 1863, Adjourned Session, p. 223. But, if such act of acceptance is ultra vires, the plaintiff has no right to complain. Railroad v. Ellerman, 105 U.S. 174.
S. P. Galt for respondent.
(1) The premises in dispute in this case were not an "unpaved" portion of the wharf, and, therefore, could not be leased by the city to the defendant. Cooley on Const. Lim., p. 57; Smith on Stat. and Con. Const., secs. 478, 481; The King v. The Inhabitants of Great Bently, 10 Barn. & Cres. 520; Walker v. Harris, 20 Wend. 555; Martin v. Hunter's Lessee, 1 Wheat. 326; Webster's Dictionary; Cannon v. New Orleans, 20 Wall. 577; Packet Co. v. St. Louis, Rep. June 23, 1880, p. 803; Schultz v. Railroad, 36 Mo. 13; 2 Dillon on Mun. Corp. [3 Ed.] sec. 796, and note, where "paving" is discussed; Burnham v. Chicago, 24 Ill. 499. (2) First. The defendant is limited in its charter to acquiring but five hundred feet frontage on the river. As it has already acquired, and now occupies, the five hundred feet, it cannot acquire and occupy the premises in question, which would make its river frontage eight hundred feet. Defendant's Charter, sec. 3; Beaty v. The Lessee of Knowler, 4 Peters, 29; Agar v. Canal Co., Cooper's Cases, 79. Second. Plaintiff being the owner of the fee, and having peculiar rights in the property, can raise the question of defendant's power to take plaintiff's land into its own possession. (3) Whether the premises in dispute were a paved or unpaved portion of the wharf, the lease of the city to the defendant and the defendant's proposed occupation of the premises are illegal: First. Because it is a diversion of the use in the property condemned and a violation of the trust assumed by the city. Second. It is placing an additional burden upon the property, the fee thereof being in the plaintiff, not contemplated in the condemnation proceedings. Third. It being an additional burden, if the proposed warehouse is considered for public use, it is taking and damaging the plaintiff's property without compensation, contrary to the common law and section 21, article 2, of the constitution of Missouri; if considered for private use, it is in violation of section 20, same article. Fourth. It is a violation of the city's implied contract made with the plaintiff, when it paid to the city the twenty-three hundred and fifty dollars, as benefits to his property, that the city would hold the property strictly in accordance with the purposes expressed, and by which the company would be benefited, and that they would not be changed, so that those benefits would be destroyed. Fifth. On all these questions the plaintiff, by reason of being adjoining and adjacent to this portion of the wharf, as well as the owner in fee of the premises, may invoke the power of a court of equity, and there obtain protection by injunction from the threatened wrong. Cooley on Const. Lim., pp. 394, 529, 53, 557, 57, 524; Currier v. Railroad, 11 Ohio (N. S.) 231; Coal Co. v. Wighton, 19 Ohio (N. S.) 560; Allen v. Jones, 47 Ind. 442; Dyckman v. Mayor, 5 N.Y. 439; Water Works Co. v. Burkhardt, 41 Ind. 363; Gilbert v. Turnpike Co., 3 Johns. Cases, 107; Railroad v. Campbell, 62 Mo. 588; Cunningham v. Railroad, 61 Mo. 33; Ellis v. Railroad, 51 Mo. 203; Railroad v. Canal Commissioners, 21 Pa. St. 22; Commonwealth v. Railroad, 24 Pa. St. 159; Bridge Co. v. Bridge Co., 27 N.Y. 93; Bradley v. Railroad, 21 Conn. 306; Baltimore v. Railroad, 21 Md. 50; Leslie v. City of St. Louis, 47 Mo. 477; State v. Noyes, 47 Maine, 207; Hannibal v. Railroad, 49 Mo. 481; Trenor v. Jackson, 46 How. Prac. R., 397; Railroad v. Combs, 10 Bush, 382 (and cases cited); Louisville v. Mill Co., 3 Bush, 416; Hooker v. Canal Co., 14 Conn. 151; Inlay v. Railroad, 26 Conn. 255; Hart v. Burnett, 15 Cal. 492; Mayor v. United States, 10 Peters, 662; Barclay v. Howell's Lessee, 6 Peters, 31; 3 Kent, 432; 1 Hawk. P. C. 76, 1; People v. Kinghman, 24 N.Y. 559; Bouvier's Law Dic., tit., Highways; St. John v. The Mayor, 3 Bos. N. Y. 483; Lackland v. Railroad, 31 Mo. 180; Rutherford v. Taylor, 38 Mo. 315; Price v. Thompson, 48 Mo. 363; Williams v. Road Co., 21 Mo. 582; Dickey v. Tennison, 27 Mo. 392; Williams v. Railroad, 16 N.Y. 97. (4) Defendant's present ordinance, lease and business are in every respect as gross violation of plaintiff's rights and the rights of the public in the premises, as were those which were before the court at the last hearing of the case, and by the court denounced and condemned, because it is the same old concern, carrying on the same old business at the same old place, with its attitude and relations to the plaintiff and the public unchanged, for it is not subject to any control of the city; it is not temporary but permanent in its character; there are no rules and regulations for its management, it is solely for private profit without any limit as to charges, but its conscience, and it has none. Second. In some respects the present ordinance and lease are a greater violation of plaintiff's rights and the rights of the public, than the former ordinance and lease, because under the former the claim was made, though transparently unfounded, that the warehouse, as then provided for, was solely for the convenience of loading and unloading boats and barges, and, therefore, was an improvement to and an extension of the improved wharf; but under the present ordinance and lease this building and these premises of which defendant has the exclusive possession, are boldly converted into a general warehouse for the storage and handling of grain and merchandise of all kinds, however received by it, whether by boat, railroad, wagon or otherwise; and this upon the land taken from plaintiff by the city by the sword of the law, as a public necessity, as "a public highway for wharf purposes," and for the contemplated benefits arising from which to plaintiff's adjoining property, plaintiff was assessed the sum of twenty-three hundred and fifty dollars, and paid it. Third. Defendant's warehouse is a private erection for private purposes, and carried on for private property, upon the public easement and plaintiff's private fee. It was a nuisance when here before, and is a nuisance still. Sug. Ref. Co. v. Elevator Co., 82 Mo. 127, and authorities there cited.
-- This is a suit to enjoin the defendant from erecting and maintaining a shed or warehouse for the storage of grain or other merchandise upon the wharf of the city of St. Louis. The circuit court, on the first trial, dismissed the petition, but the judgment was reversed and the cause remanded by this court. 82 Mo. 121. Pending that appeal the defendant erected the warehouse. The second trial resulted in a decree for the plaintiff, requiring the defendant to remove the buildings and restore the ground so that it might be used as a wharf.
The plaintiff is a corporation organized under the laws of this state; and the defendant, the St. Louis Grain Elevator Company, was organized under the special act of December 18, 1863, the third section of which provides: The elevators are to be so constructed as to give railroads a trackway through the same and so as
Besides the general powers to establish and regulate public wharves and docks, and to collect wharfage, the charter of the city of St. Louis, of 1876, provides that the mayor and assembly shall have power by ordinance "to set aside or lease portions of the unpaved wharf for special...
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