Heger v. St. Louis

• Citation: 20 S.W.2d 665
• Decision Date: 04 October 1929
• Docket Number: No. 28037.,28037.
• Parties: FREDERICK HEGER ET AL. v. CITY OF ST. LOUIS ET AL., Appellants.
• Court: United States State Supreme Court of Missouri

20 S.W.2d 665

FREDERICK HEGER ET AL. v. CITY OF ST. LOUIS ET AL., Appellants.

No. 28037.

Supreme Court of Missouri. Division Two.

October 4, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

REVERSED AND REMANDED.

Julius T. Muench, F.G. Sebek and Richard S. Bull for appellants.

(1) The rental of and receipt of income from a portion of a public park is neither in violation of any law of this State nor of public policy. State ex rel. Wood v. Schweickardt, 109 Mo. 496; Goode v. St. Louis, 113 Mo. 257. The Board of Commissioners of Tower Grove Park has been granted the same power and authority in respect to this park as the city of St. Louis has as to others. Laws 1867, p. 172, sec. 5; Charter of St. Louis, art. 1, sec. 1, clause 8. (2) The temporary rental of buildings in a public park for private purposes, pending the time when such property may be made available for public use, should not be enjoined. 4 McQuillan, Mun. Corps. (2 Ed.) sec. 1650; Davis v. Rockport, 213 Mass. 279, 43 L.R.A. (N.S.) 1139; Gottlieb Knabe & Co. v. Macklin, 109 Md. 429, 31 L.R.A. (N.S.) 580. This is particularly true where such rental tends to save the property from deterioration and to lighten the burden of taxation otherwise required for maintenance. An injunction in such case would be oppressive, without inuring to the material good of complainants. Henrietta Country Club v. Jacobs, 269 S.W. 137; Gottlieb Knabe & Co. v. Macklin, supra; Holland Realty Co. v. St. Louis, 282 Mo. 180; Schopp v. Schopp, 162 Mo. App. 558. (3) The leasing or rental of the buildings on the portion of the park in question for purposes incidental to the public use is permitted. State ex rel. Wood v. Schweickardt. 109 Mo. 496. The decree of injunction issued was therefore so broad as to be a nullity, as it sought perpetually to enjoin the rental of the property for any purposes whatsoever and to any persons whomsoever. The restraint imposed must be reasonable and must not prevent the exercise of present rights or rights that may be acquired in the future. 32 C.J. 369, 378; Crigler v. Mexico, 101 Mo. App. 624; Sanders v. Dixon, 114 Mo. App. 229.

Marion C. Early and Ivon Lodge for respondents.

(1) An injunction is the proper remedy to prevent a diversion of the use of public property to private uses. Cummings v. St. Louis, 90 Mo. 259; 32 C.J. 272; Hill v. Hauk, 155 Ala. 448; Warren v. Lyons, 22 Iowa, 351; Attorney-General v. Town of Brantford, 6 Grants Ch. 592; Price v. Thompson, 48 Mo. 361. (2) The city of St. Louis has no right to acquire real property under the right of eminent domain for alleged public purposes and then divert that property to private persons for strictly private use. Kansas City v. Hyde. 196 Mo. 512; Mo. Constitution, art. 2, sec. 20; 20 C.J. 587; Salisbury Land Co. v. Commissioners, 215 Mass. 371; Board of Regents v. Painter, 102 Mo. 465; McQuillan Municipal Corp. (2 Ed.) 776, sec. 1257; Land Co. v. Seattle, 37 Wash. 274 (3) Plaintiffs living in the immediate vicinity of the land in question and having been assessed benefits in the condemnation proceedings have a right to maintain this action. These benefits were not only assessed but were paid. Cummings v. St. Louis, 90 Mo. 259; Wright v. Wolcott, 238 Mass. 432.

COOLEY, C.

Suit for injunction in the Circuit Court of the City of St. Louis. Judgment for plaintiffs, granting permanent injunction as prayed, from which defendants appeal.

Defendants other than the city of St. Louis are members of and compose the Board of Commissioners of Tower Grove Park, a public park in said city. Plaintiffs respectively own and reside upon parcels of land in the immediate vicinity of the park and of the strip of ground hereinafter referred to, which was condemned and taken for an extension of the park.

Tower Grove Park was established by an act of the Legislature in 1867, entitled "An Act to create, establish and provide for the government of the Tower Grove Park of the City of St. Louis." and was to embrace originally such lands, within prescribed boundaries, as Mr. Henry Shaw might see fit to give for the purposes of a public park. Pursuant to such legislative act, Mr. Shaw conveyed to the city certain lands thereafter known as Tower Grove Park. For the purpose of extending the park, the city of St. Louis, in 1921, passed an ordinance providing for the acquisition by condemnation of a strip of ground referred to as the Payne tract, not included in the Shaw conveyance. This strip is approximately 900 feet long by 182 feet wide, abutting lengthwise, as we understand the record, upon the south side of Magnolia Avenue, and adjacent to the park south of it, and will thus extend and "round out" the park to Magnolia Avenue. The condemnation proceedings culminated in final judgment in May, 1926, vesting title to said strip of land, as stated in the pleadings, in the city of St. Louis, and providing that same should be held forever for public park purposes. In the condemnation proceedings special benefits were assessed against the properties of plaintiffs, which have been paid.

Pursuant to the judgment in the condemnation proceedings the former owners of the condemned property surrendered possession thereof to the city, and it was taken over by the board of commissioners about August 20, 1926. This suit was begun September 4, 1926. There are three dwelling houses located upon the strip in question, all immediately south of and fronting on Magnolia Avenue, each lot having a frontage of about fifty feet. Two of the houses were erected five or six years prior to the filing of this suit at a cost of about $20,000 each. The other one is somewhat older, but a good substantial house. Until surrendered to defendants the two newer houses had been occupied by their owners. The older house had been occupied for some months by a Mrs. O'Hara as tenant of the owner. All other properties in the immediate vicinity were occupied by their owners, the neighborhood being a residential section of substantial homes.

Upon taking possession of the property the board of commissioners placed tenants in the two newer houses and arranged with Mrs. O'Hara to remain as their tenant in the house she then occupied, all on the basis of a verbal tenancy from month to month and at rentals aggregating $307 per month. It was this rental of the houses that led to the bringing of this action. Plaintiffs in their petition claim that defendant commissioners propose to rent the houses for an indefinite time to private persons for dwelling and boarding house purposes, to the exclusion of the public, and that they have taken no steps to raze the houses in order to convert the property to park purposes, by reason whereof plaintiffs and the citizens of St. Louis are being deprived of valuable rights; that plaintiffs have suffered damage in that the character of the neighborhood has been and will be cheapened and the value of their properties lessened by making rental property of these houses formerly occupied by owners: that such use of said houses deprives plaintiffs of the benefits of having a public park in close proximity to their homes, for which special benefits were assessed against their properties, and that such use by the commissioners of the property in question constitutes a fraud upon plaintiffs' rights and is an unauthorized and illegal use of said property, and a diversion thereof from the use for which it was condemned.

There was no evidence tending to show any fraudulent purpose or bad faith on the part of the commissioners. At the trial the only claim made by plaintiffs' counsel in regard to the charge of fraud was that since the property had been condemned for park purposes the renting of the houses to private persons for any length of time for dwelling or other private uses constituted a legal fraud. Some effort was made to show that Mrs. O'Hara conducted a boarding or rooming house in the building occupied by her, but the evidence does not justify a finding that such was the fact. She was visited by some relatives who stayed several days and while they were there the unusual number of persons seen going in and out of the premises gave rise to the mistaken idea that a rooming or boarding house was being kept. There was no complaint as to the tenants in the other two houses, nor as to the manner in which the properties were kept up. It was clearly shown by the evidence and was practically conceded that all the tenants are good, respectable people, and that since rented to them by the commissioners the premises are as well kept and present as sightly an appearance as when occupied by their owners. The only evidence tending to show that renting the houses to respectable tenants, assuming they were kept in good condition, would cheapen the neighborhood or affect property values, was that of one witness, a real estate dealer, who gave it as his opinion that "where an exclusively residence district owned by property owners is invaded by tenants or boarding houses or things of that character, it would have a tendency to decrease the value of the property." On cross-examination on this point he said that a permanent invasion of an exclusively residential district by tenants would have a tendency to keep prospective purchasers from buying in that district for exclusive homes, but that renting a house temporarily for six or eight months or a year to a responsible tenant who kept it in good condition would not be objectionable nor materially affect the neighborhood.

The evidence in support of plaintiffs' claim that the commissioners intended and threatened to rent the houses indefinitely consisted of the testimony of one of the plaintiffs that in a conversation with Mr. Hutchings, secretary of the board of commissioners, about August 1, "he asked me whether there would be any objection to the buildings staying there and then leasing them; that they needed the money, and that in eight or ten...