Funke v. City of St. Louis

• Decision Date: 24 May 1894
• Citation: 26 S.W. 1034
• Parties: FUNKE v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

26 S.W. 1034

FUNKE v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

May 24, 1894.

EMINENT DOMAIN — COMPENSATION — PLATS — ADJOINING LOTS.

1. Plaintiff owned a lot between two much wider lots, all three abutting on an established street running north and south. The north side line of plaintiff's lot coincided with an extension of the south line of an established cross street. The adjoining owners platted their lots in such a manner that the cross street was not extended along plaintiff's lot, seriously affecting its value. Held, that the "damage" consequent to plaintiff's lot was not within Rev. St. 1889, § 1815, and such as the city became liable for by approving said plats.

2. A city, in accepting and approving a plat, performs a discretionary act, judicial in its nature, which the courts will not review so long as no distinct legal duty has been violated.

Appeal from St. Louis circuit court.

Application by Augusta A. Funke for commissioners to assess her compensation for damages to her property caused by the city of St. Louis. Demurrer sustained, and judgment for defendant. Plaintiff appeals. Affirmed.

This is a proceeding which plaintiff claims is bottomed on section 1815, Rev. St. 1889. She owns a tract of land having a front of 146 feet 8½ inches on the west side of Marcus avenue, and extending westwardly 1,130 feet. Hogan owns a tract immediately north of plaintiff's, having a front on the west side of Marcus avenue of 279 feet, by a depth westwardly of 1,130 feet. Hammett owns a tract south of paintiff's property, having a front on the west side of Marcus avenue of 522 feet by a depth, westwardly of 1,130 feet. Hammett subdivided his property so as to make a street 100 feet in width extending westwardly from Marcus avenue, and further subdivided it into lots fronting said street on the north and south sides thereof, with a depth of 193 feet to such lots, and ran alleys, 18 feet in width, along the north and south lines of his property, and an alley along the west line of the same, so that each of his said lots fronted on the street, and had an opening on an alley. The alley on the north end of his property was next to the south line of plaintiff's property. Afterwards Hogan subdivided his property by opening a street 50 feet in width, extending westwardly through his property from Marcus avenue, and further subdivided it into lots fronting said street on the north and south sides thereof, and having a depth of 115 feet each. The rear of Hogan's lots therefore extended to the north line of plaintiff's property. The city approved of these subdivisions, and accepted the dedications of the streets and alleys made by Hammett and Hogan. Plaintiff in this suit seeks to have commissioners appointed to assess the damages to her property caused by the subdivisions aforesaid, and contends that the city, under the section aforesaid, has made itself liable to her in damages, because it approved of the plat of Hogan's subdivision of the city, and accepted the dedications therein contained.

Plaintiff further contends that, having only 146 feet front by a depth of 1,130 feet, it is impossible for her to run a street through her strip of land, and thereby secure a front for lots which she might desire to lay off out of the depth of her lot. She claims that her property has been damaged, within the meaning of section 21 of article 2 of the constitution of Missouri, because the alley on the north line of Hammett's addition adjoins her property, and because persons building on the Hammett tract will put their outhouses next to the alley, and thereby damage her, and because persons building on the south line of the lots laid off in the Hogan subdivision will put their outhouses on the rear of the lots next to her north line, which will be an injury to her property. Prior to the subdivision of the Hammet and Hogan property, Cottage avenue was a public highway as far west as Marcus avenue. If Cottage avenue had been prolonged westwardly in a direct line, the south line thereof would have been coincident with the north line of plaintiff's lot, and would thereby have given her a front on Cottage avenue for the full depth of the 1,130 feet of her lot. The street dedicated by Hogan is 115 feet north of the north line of plaintiff's property, and is named Cottage avenue. Thus Cottage avenue west of Marcus avenue is not a direct prolongation of Cottage avenue east of Marcus avenue. The same state of facts is true with reference to St. Ferdinand avenue and to North Market street, south of plaintiff's property, except that the street dedicated by Hammet Is named Hammet Place instead of taking the name of either St. Ferdinand avenue or North Market street. Still further north than Cottage avenue is Kennerly avenue, which, west of Marcus avenue,...