168 S.W. 763 (Mo. 1914), Chaplin v. Kansas City

• Citation: 168 S.W. 763, 259 Mo. 479
• Opinion Judge: BROWN, C. Per Curiam.
• Party Name: EMELINE CHAPLIN, Appellant, v. KANSAS CITY et al
• Attorney: H. S. Julian for appellant. A. F. Evans, Jay M. Lee and A. F. Smith for respondents.
• Judge Panel: BROWN, C. Blair, C., concurs. Bond, J., concurs in result.
• Case Date: June 30, 1914
• Court: Supreme Court of Missouri

Page 763

168 S.W. 763 (Mo. 1914)

259 Mo. 479

EMELINE CHAPLIN, Appellant,

v.

KANSAS CITY et al

Supreme Court of Missouri, First Division

June 30, 1914

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Affirmed.

H. S. Julian for appellant.

(1) Injunction lies. "An abutting property owner has the same right to the use of the street that rests in other property owners and the public at large. Besides this, he has the right of access to and from his lot, which right is special to him. It is an easement appurtenant to his real estate abutting on the street. It is private property as much as the lot itself and cannot be destroyed or impaired for public use, save by the payment of compensation therefor." Knapp v. Transfer Co., 126 Mo. 35; Dubach v. Railroad, 89 Mo. 483; Dry Goods Co. v. Railway, 41 Mo.App. 63; Lakenan v. Railroad, 36 Mo.App. 363; Sheedy v. Brick Works, 25 Mo.App. 529. (2) Powers of city. Neither the city nor the State can take away or seriously impair or place a new or added burden or servitude upon a highway so as to take away or impair the right of the abutting property owner without awarding him such compensation as he is entitled to under the Constitution. Elliott on Roads and Streets (3 Ed.), secs. 823, 835, 882, 891 and 278; Cooley on Torts, 616; Stone v. Fairbury, 68 Ill. 394; Ross v. Thompson, 78 Ind. 90; Cummins v. Seymour, 79 Ind. 491. "The Legislature of the State could not authorize any other use of the property in question than that specified in the act of dedication." Cummings v. St. Louis, 90 Mo. 264. (3) Property dedicated for one public use cannot be condemned for another or different public use. Imlay v. Railroad, 26 Conn. 255; Williams Plank Road Co., 21 Mo. 582; Refining Co. v. Grain & Elevator Co., 82 Mo. 125; Reid v. Board of Education, 73 Mo. 295; Campbell v. Kansas City, 102 Mo. 326; California v. Howard, 78 Mo. 88; Hannibal v. Draper, 15 Mo. 634. (4) The right of access to a lot cannot be destroyed. Thurston v. St. Joseph, 51 Mo. 510; Knapp, Stout & Co. v. Transfer Co., 126 Mo. 26; State ex rel. v. Murphy, 134 Mo. 562; State ex rel. v. Railroad, 206 Mo. 262; Zimmerman v. Railroad, 154 Mo.App. 301; 10 Am. & Eng. Ency. Law, 1127.

A. F. Evans, Jay M. Lee and A. F. Smith for respondents.

(1) The use of the land, formerly in the alley, for boulevard purposes, is not inconsistent with the uses and purposes for which it was originally dedicated as an alley; no new burdens are added, and no old rights are taken away. The original dedication as an alley carried with it the right in the city to devote the land in the alley to such additional uses, not inconsistent with the original use, as new deeds demand. (2) Even if the new uses, for a boulevard, were not such as could have been applied to the alley under the original dedication, nevertheless all private rights and easements in the alley were condemned by the condemnation proceedings, to which appellant's grantor was a party. Appellant's grantor, and appellant claiming through her, are concluded by the verdict. (3) And as all private rights in the alley, if any, were condemned in the proceedings, only the owner of the rights taken, appellant's grantor, by timely action, could complain that she was not given just compensation therefor. The effect of the judgment cannot be attacked collaterally by a stranger. (4) Appellant fails to show any ground for equitable interference, either in her petition or in her evidence. (5) Summarizing appellant's arguments and citations of law, none of them apply to the conditions of the case at bar. (a) The use of the land, formerly in the alley, for boulevard purposes, is not inconsistent with the uses and purposes for which it was originally dedicated as an alley; no new burdens are added, and no old rights are taken away. The original dedication as an alley carried with it the right in the city to devote the land in the alley to such additional uses, not inconsistent with the original use, as new needs demand. Bailey v. Culver, 12 Mo.App. 175; Kalteyer v. Sullivan, 18 Tex. Civ. App. 488; Hodges v. Chambers, 171 Mo.App. 563; Lewis on Eminent Domain (3 Ed.), sec. 220; Fagan v. Chicago, 84 Ill. 227; 5 Current Law, p. 1669; Elliott on Roads & Streets (2 Ed.), sec. 698; Bldg. Assn. v. Telephone Co., 88 Mo. 258; St. Louis v. Railroad Assn., 211 Mo. 364; Burns v. St. Joseph, 91 Mo.App. 489. (b) Even if the new uses, for a boulevard, were not such as could have been applied to the alley under the original dedication, nevertheless all private rights and easements in the alley were condemned by the condemnation proceedings, to which appellant's grantor was a party. Appellant's grantor, and appellant claiming through her, are concluded by the verdict.

BROWN, C. Blair, C., concurs. Bond, J., concurs in result.

OPINION

Page 764

[259 Mo. 482] BROWN, C.

This suit...