Arcadia Realty Co. v. City of St. Louis.
| Citation | 30 S.W.2d 995 |
| Decision Date | 04 September 1930 |
| Docket Number | No. 30198.,30198. |
| Parties | ARCADIA REALTY COMPANY ET AL., Appellants, v. CITY OF ST. LOUIS ET AL. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court of City of St. Louis. — Hon. Moses N. Sale, Judge.
AFFIRMED.
Buder & Buder, G.A. Buder, Jr., and E.E. Showengerdt for appellants.
(1) Vacation of highways is not favored by the courts and the presumption is always in favor of their continuance. Oetting v. Pollock. 189 Mo. App. 263. (2) The burden of proof of showing valid a vacation is upon the party asserting the vacation. Oetting v. Pollock, 189 Mo. App. 263; Elliott on Streets & Roads, sec. 1172. (3) Proceedings to vacate streets are regulated by city charters and the charter provisions must be strictly followed in all respects. If not followed the vacation ordinance is invalid. Clinton v. Turner. 95 Miss. 394. (4) Even though the plaintiffs' land does not abut directly upon the part of the street proposed to be vacated, still they are entitled to relief if it is pleaded or shown that the closing of the street upon which plaintiffs' property is situated will be converted into a blind street, for they then suffer an injury distinct and different from that suffered by the general public. Lewis on Eminent Domain sec. 202; Hacker Co. v. Joliet, 195 Ill. App. 415; Rigney v. Chicago, 102 Ill. 64; Clinton v. Turner. 95 Miss. 594; Heinrich v. St. Louis, 125 Mo. 424. (5) Plaintiffs have an interest in the streets upon which their property abuts and have the right to have the streets on which their respective properties abut kept open to the next connecting street in each direction. Lewis on Eminent Domain, secs. 198, 202, 206; Glasgow v. St. Louis, 107 Mo. 204; Hawley v. Baltimore, 33 Md. 270; Baltimore v. Frick, 82 Md. 77; Canton Co. v. Baltimore, 106 Md. 69; In re 29th Street, 1 Hill, 189; Reis v. New York, 188 N.Y. 58; Heinrich v. St. Louis, 125 Mo. 424. (6) The owner of property has a right of access in both directions on his street which extends as far, at least, as the next connecting highway. In re 23rd Street Trafficway v. Crutcher, 279 Mo. 279; Applegate v. Director General of Railroads, 205 Mo. App. 614; Lewis on Eminent Domain, secs. 198, 202. (7) If the plaintiffs' access to their property will be shut off in one direction by the vacation of street in question they will suffer a special damage and special injury. Lewis on Eminent Domain, sec. 202; Chicago v. Burkey, 158 Ill. 103; Winnetka v. Clifford. 201 Ill. 475; Gargan v. Railway, 89 Ky. 212; Bannon v. Rohmeier, 90 Ky. 48; Vanderburgh v. Minneapolis. 98 Minn. 329; In re Melon Street, 182 Pa. St. 397; Foust v. Railroad, 212 Pa. St. 213; Johnson v. Railroad, 18 R.I. 642; Tilley v. Mitchell & Lewis Company, 121 Wis. 1; Chicago v. Baker, 86 Fed. 753; Chicago v. Baker, 98 Fed. 830. (8) The closing and obstruction of the street in question impairs access to the plaintiffs' property, whereby it is diminished in value, therefore the plaintiffs suffer a special damage for which they may recover. Heinrich v. St. Louis. 125 Mo. 424; Glaessner v. Anheuser-Busch Co., 100 Mo. 516; Autenreith v. Railroad Co., 36 Mo. App. 254; Dries v. St. Joseph, 98 Mo. App. 611; Ellis v. Railroad, 131 Mo. App. 395; Texarkana v. Leach, 66 Ark. 40; Caker v. Atl. Ry., 123 Ga. 483; Chicago v. Burcky, 158 Ill. 103; Chicago v. Wilb, 102 Ill. App. 232; Chrisman v. Bridge Co., 125 Iowa, 133; Leavenworth etc. v. Curlan, 51 Kan. 432; Horton v. Williams, 99 Mich. 423; Foust v. Pa. Ry., 219 Pa. St. 213; Lewis on Eminent Domain, secs. 198, 199, 202; Tilley v. Mitchell & Lewis Company. 121 Wis. 1; Elliott on Eminent Domain, pp. 370-374. (9) The petition in the present case alleges facts showing that the value of plaintiffs' property will be greatly depreciated by the closing of the streets in question. This has been held to be a sufficient allegation of a special and peculiar nature such as to entitle the plaintiff to maintain the action. Tilley v. Mitchell & Lewis, 121 Wis. 7, 98 N.W. 969; Elliott on Eminent Domain, pp. 370, 374. (10) Under the present Charter of the city a non-abutting property owner is recognized as having a special interest in his street and in streets situated within the immediate vicinity of his property and by reason of his interest therein, he may be charged with his pro rata part of the cost of opening or improving such street and conversely, is entitled to compensation for his damages ("to be paid by abutting property owners") if such street be vacated. Acts XXI, XXII, XXIII, Charter of City of St. Louis. Where a street has been opened by condemnation, or where it has been improved, and the property in the benefit district is specially assessed for benefits on account of the improvement it would seem that the payment of such assessment should secure to the property the advantages paid for. Wormser v. Brown, 72 Hun. 93, 25 N.Y. Supp. 533; Oliver Schlemmer Co. v. Steinman Co., 2 Ohio N.P. (N.S.) 293. (11) Ordinance No. 37106 was not passed or adopted in accordance with charter requirements. Under the demurrers it is admitted that the ordinance was not reported in writing not later than the first meeting of the board held more than three days after the order to engross, but was ordered engrossed on June 26, 1928, and was subsequently reported engrossed and voted upon on the same day, which was not more than three days after the order to engross. This procedure was not in accordance with the city charter. Charter of City of St. Louis, Art. IV, secs. 1, 15, 16 and 18. (12) The petition alleges that the ordinance in question was passed by the city for and in consideration of certain of the defendants dismissing a certain damage suit filed by them against the city, and passed for benefit of private corporate interests and not for public good or need, which facts are admitted by the demurrers. This, in effect, constitutes a wrongful conversion of the property of these plaintiffs to public use without just compensation. Mo. Constitution of Missouri, Art. II, secs. 21, 30.
Cyrus Crane, W.G. Carpenter and Geo. C. Mackay for Atchison, Topeka & Santa Fe Railway Company.
(1) Where power to vacate streets is conferred upon a municipality its action in the exercise of the power is discretionary, and its determination that public convenience requires a street to be closed is conclusive and is not open to review by the courts. Gorman v. C.B. & Q. Ry., 255 Mo. 483; Glasgow v. St. Louis, 107 Mo. 198; Christian v. St. Louis, 127 Mo. 109; Knapp v. St. Louis, 153 Mo. 560, 156 Mo. 343; Atkinson v. Wykoff, 58 Mo. App. 86. (2) An owner whose property does not directly abut upon a street to be vacated has no ground for complaint and cannot maintain any action at law for damages or in equity for an injunction. City Charter, Art. XXI, sec. 14; Rude v. City of St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92; Van De Vere v. Kansas City, 107 Mo. 83; Glasgow v. St. Louis, 107 Mo. 198; Knapp-Stout & Co. v. St. Louis, 153 Mo. 560; Knapp-Stout v. St. Louis, 156 Mo. 343; Cummings Rlty. & Inv. Co. v. Deere & Co., 208 Mo. 66, 14 L.R.A. (N.S.) 822; Gorman v. Railroad, 255 Mo. 483; Supply Co. v. Iron Works, 266 Mo. 138, 181 S.W. 30; Applegate v. Director General, 205 Mo. App. 611, 266 S.W. 628; 49 A.L.R. 330, note; 44 C.J. 893; 46 C.J. 732; 20 C.J. 677, 701. (3) The fact that one of the reasons for vacating a street was to accommodate an individual or that the municipality received a valuable consideration is not to be considered a ground for invalidating the action of the municipality. Knapp v. St. Louis, 156 Mo. 343, 153 Mo. 560; Glasgow v. St. Louis, 107 Mo. 198; Kansas City v. Brown, 286 Mo. 1.
This is a suit to enjoin the vacation of parts of certain streets and alleys in the city of St. Louis and the erection of buildings thereon, pursuant to an ordinance of said city enacted July 7, 1928. The plaintiffs are the Arcadia Realty Company, G.A. Buder, Jr., William F. Buder, F.B. Versteeg, W.B. Versteeg, Versteeg Warehouse & Transfer Company, Albert Theis and Emma Theis; they own divers and sundry parcels of ground in the vicinity of the streets and alleys proposed to be vacated. The defendants are the city of St. Louis, Terminal Railroad Association, Union Depot Company of St. Louis and Atchison, Topeka & Santa Fe Railway Company; the defendants, other than the city of St. Louis, own all of the lots which abut on the streets and alleys to be vacated. The defendants demurred to the petition in the court below and their demurrer was sustained. Plaintiffs refused to further plead and judgment for defendants followed. On this, plaintiffs,' appeal, the sole question for determination is whether the petition states facts sufficient to entitle plaintiffs to the injunctive relief they seek. The petition is too long to set out in full: with the aid of blue prints which counsel stipulate we may use to "visualize the situation," we will endeavor to epitomize the material allegations of fact.
The principal vacation to be effected by the ordinance, and the only one we need consider, is that of Poplar Street between 14th Street on the east and 16th Street on the west. Poplar Street runs east and west; 14th and 16th Streets north and south; midway between 14th and 16th Streets is 15th Street, another north-and-south street. City Block 218 lies immediately north of Poplar Street, between 14th and 15th Streets; City Block 219 lies adjacent to Poplar Street on the north and between 15th and 16th Streets. City Block 218 is bisected by a north-and-south trafficway, thirty feet in width, called Johnson street; a thirty-foot alley also runs north and south through the middle of City Block 219. Johnson Street, 15th Street and the alley through City Block 219 all terminate on the south at Poplar Street; 16th Street ends at an east-and-west alley a half block south of Poplar; and the north-and-south street one block west of 16th...
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