Lester Real Estate Company v. City of St. Louis
| Citation | 69 S.W. 300,169 Mo. 227 |
| Parties | LESTER REAL ESTATE COMPANY, Appellant, v. CITY OF ST. LOUIS |
| Decision Date | 18 June 1902 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Jno. A. Talty Judge.
Affirmed.
Judson & Green and J. Clarence Taussig for appellant.
(1) Under the terms of section 21, article 2, Constitution, one whose property is damaged for public use is entitled, at any time after the work has commenced, to have his compensation adjusted and paid, without reference to the fact that the work is not completed. Hickman v. City of Kansas, 120 Mo. 110; St. Louis v. Hill, 116 Mo. 527; St Louis v. Lang, 131 Mo. 412; Iron Co. v. St Louis, 138 Mo. 608. (2) The plans for the bridge and approaches having been made by the board of public improvements, said plans are in effect a part of ordinance 18834, directing the board to cause a bridge to be built in accordance with plans adopted by said board of public improvements. Becker v. City of Washington, 94 Mo. 375; Asphalt Paving Co. v. Ullman, 137 Mo. 571. As the city of St. Louis can not construct the Clark avenue bridge and its approaches unless the same is done in pursuance of an ordinance; ordinance 18834, directing the construction of said bridge and approaches, being still in force, has the effect of a declaration that the bridge and approaches would be built, and the plans for said bridge and approaches made by the board of public improvements had the intended effect of establishing the grade on Eighteenth street, as in said plans declared. Iron Co. v. St. Louis, supra; St. Louis v. Lang, supra; Werth v. City of Springfield, 78 Mo. 107. (3) An injunction should be issued restraining the city of St. Louis from building the Clark avenue bridge and approaches, in pursuance of the city ordinance, until the damages suffered by plaintiff to its property, by reason thereof, is adjusted. Iron Co. v. St. Louis, supra; High on Injunctions, sec. 18; R. S. 1889, sec. 5510; R. S. 1899, sec. 3649; Overall v. Ruenzi, 67 Mo. 207; Cummings v. St. Louis, 90 Mo. 259; St. Louis v. Hill, supra; Armstrong v. City, 3 Mo.App. 15; McElroy v. Kansas City, 21 F. 257; McArthur v. Kelly, 5 Ohio St. 153.
Chas. W. Bates and Wm. F. Woerner for respondent.
(1) Before equity will grant injunctive relief, it must appear that the injury or wrong is real and imminent, if it has not actually begun. Mere apprehension, fear, belief, prospect, possibility or contingency is not sufficient. Kerr on Injunctions (1 Ed.), star pp. 198, 339; Bispham on Equity (5 Ed.), sec. 440; 2 Beach on Injunction, sec. 1301; Brookline v. Mackintosh, 133 Mass. 215; Newark Aqueduct Board v. Passaic, 46 N.J.Eq. 552; Hutchinson v. Delano, 46 Kans. 345. (2) Unless the proof of alleged facts, upon which the right to injunctive relief depends, is sufficient to enable the court to affirmatively find them as facts, injunction should not issue. Carlin v. Wolff, 154 Mo. 545. (3) The authorities cited by appellant fully sustain the proposition that the city can only act in constructing the bridge in pursuance of the ordinance (No. 18834), and consequently only under its conditions and terms, including the plans adopted in accordance therewith. Charter of St. Louis, art. 6, secs. 27 and 28; art. 5, sec. 14; Iron Co. v. St. Louis, 138 Mo. 608; Werth v. Springfield, 78 Mo. 107; Asphalt Company v. Ullman, 137 Mo. 571; Becker v. Washington, 94 Mo. 375.
This is a proceeding for an injunction to restrain the defendant from constructing a bridge on Clark avenue, from Eighteenth to Twentieth streets, with approaches extending northwardly on Eighteenth and Twentieth streets.
The ordinance (No. 18834) authorizing the construction of the bridge, provides that it shall be fifty-four feet wide and shall be according to the plans therefor adopted by the board of public improvements. The ordinance appropriates one thousand dollars towards the cost of the work, and recites that when the Union Depot Company and the Terminal Railroad Association, pay to the city the $ 150,000 they agreed to pay it as a consideration for ordinance 15989, which authorized those companies to erect the present Union Station and vacate the streets and alleys covered by it, then the auditor should pass that sum to the credit of the fund set apart for the construction of the Clark avenue bridge. The plaintiff owns a lot of ground, fronting two hundred feet, on the east side of Eighteenth street. The approach to the bridge on Eighteenth, according to the plans aforesaid, would start opposite the north end of plaintiff's lot, and rise on a grade of four feet to the hundred, so that opposite the south end of plaintiff's lot the grade of the bridge approach would be about eight feet above the present grade of the street, and about the same above the grade of plaintiff's lot. Eighteenth street is a sixty-foot street, and if the said approach is so constructed at that point, fifty-four feet wide, as the plans call for, it would leave only six feet of the street next in front of the plaintiff's land on the present grade. There is a double line of street car tracks on Eighteenth street. The plans themselves, however, call for Eighteenth street to be one hundred feet wide, and the defendant shows that by ordinance No. 17799, approved February 9, 1895, Eighteenth street was to be widened to one hundred feet, and that a suit to have it so widened was prosecuted in the courts, until that ordinance was repealed by ordinance No. 19786, approved April 6, 1899. If this had been done the street in front of the plaintiff's lot would have been forty-six feet wide, exclusive of the fifty-four feet occupied by the bridge approach, and the grade of the forty-six feet of the street would have been the same as the grade of the plaintiff's lot. Of course, as the street was to have been widened entirely on the east side of Eighteenth street, the forty feet additional necessary to widen that street would have to be taken from the plaintiff's lot. The plaintiff alleges that the "defendant has commenced work under said ordinance in the construction of said approach" and unless enjoined will proceed with said work on Eighteenth street in front of the plaintiff's property, and asks for an injunction to restrain the city from proceeding with said work until the damage to the plaintiff's property is ascertained and paid.
The defendant, on the other hand, shows that for the present, at least, it has abandoned its purpose to construct the bridge in question, and that subsequent events have rendered the ordinance authorizing the construction of the bridge impossible of execution, and that before the city can construct such a bridge or any bridge or change the grade of Eighteenth street in front of the plaintiff's property, further legislation will be necessary. The defendant further shows that there is no room for even apprehension on the part of the plaintiff that such approach or bridge will be built under said ordinance, or that plaintiff's property can be damaged in any way by the fact that such ordinance remains unrepealed, or by reason of anything that can now be done pursuant to the authority of said ordinance.
In this connection a few dates grouped together become very important.
The ordinance vacating the streets and alleys for the erection of the Union Station was approved April 25, 1891. The ordinance providing for the widening of Eighteenth street was approved February 6, 1895. The ordinance for the construction of the bridge on Clark avenue, with the approaches on Eighteenth and Twentieth streets, was approved March 11, 1897. The ordinance repealing the ordinance providing for the widening of Eighteenth street was approved April 6, 1899. The only work that was ever done under the ordinance authorizing the construction of the bridge, was to start to put in the foundations for one pier on Clark avenue just outside of the Union Station grounds, which work amounted to $ 120.30, and the Union Station Company made it impossible for the city to proceed with the work by refusing to let the city come onto Clark avenue between Eighteenth and Twentieth...
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