Armstrong v. City of St. Louis

• Decision Date: 07 December 1876
• Citation: 3 Mo.App. 151
• Parties: D. H. ARMSTRONG, Respondent, v. CITY OF ST. LOUIS et al., Appellants.
• Court: Missouri Court of Appeals

3 Mo.App. 151

D. H. ARMSTRONG, Respondent,

v.CITY OF ST. LOUIS et al., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 7, 1876.

1. The limitation imposed upon the mayor and Council of the city of St. Louis, by the 5th subdivision of section 1, article 3, of the Charter of 1870, was not affected by the reënactment in the amendments passed in 1874. Sess. Acts, 1874, p. 363.

2. A city may be enjoined and restrained from establishing a grade and doing work upon a street, if the proposed grade and doing work would not be beneficial to the public, but would render the street impassable, and the place to which it leads inaccessible.

APPEAL from St. Louis Circuit Court.

Affirmed.

E. T. Farish, for appellants, cited: Laws 1874, p. 363; Ang. on Highw., sec. 138; Goszler v. Georgetown, 6 Wheat. 593; Schattner v. Kansas, etc., 53 Mo. 162; 2 Dill. on Mun. Corp., secs. 542, 543, 783.

Reese & Hicks, for respondent, cited: Price v. Thompson, 48 Mo. 611; Dill. on Mun. Corp., secs. 255, 263, 521, 522, 543; Kerr on Inj. 333; Milham v. Sharp, 27 N. Y. 625; 2 Story's Eq. Jur., secs. 923, 924; 4 Steph. Com. 294; Ang. on Highw., secs. 222, 226, 283; 5 Green, 530; Imler v. Springfield, 55 Mo. 119; Acts 1870, p. 479; Wag. Stat. 1032, sec. 24; City of St. Louis v. Weber, 44 Mo. 547; Hill. on Inj. 301, 312; Bouv. L. Dic., title Street; 3 Kent's Com. 432; Rex v. Marquis, 4 Ad. & E. 713; 4 Serg. & R. 106.

GANTT, P. J., delivered the opinion of the court.

Armstrong asked for an injunction against the city, its engineer and contractors, on the following grounds, viz.: That for ten years and more he had been the owner of a tract of land in St. Louis, bounded north by Chouteau Avenue, west by Armstrong Avenue, south by the proposed line of Hickory Street, and east by a line running about midway between Armstrong Avenue and Mississippi Avenue, and parallel thereto; said lot having a front on said proposed line of Hickory Street of 370 feet; that the eastern portion of said proposed Hickory Street, to wit, about 353 feet next to Mississippi Avenue, had been dedicated to public use theretofore by the owners of the land, and also, under certain considerations, a narrow strip, of half the necessary and proposed width of said street, laid off of plaintiff's above-described land, through to Armstrong Avenue, but that said street, as proposed, had not been declared through from said Mississippi Avenue to Armstrong Avenue; that the City Council, by ordinance 8190, approved January 29, 1873, established Hickory Street as a public highway, through from Mississippi to Armstrong Avenues, conforming in lines and width with that portion of 353 feet dedicated and the north line of said proposed street, conforming with the north lines of said narrow strip dedicated by plaintiff as aforesaid. Said ordinance further authorized and directed the land commissioner to cause Hickory Street to be opened according to law, but that Hickory Street had never been opened between the said two avenues; that, by ordinance 9097, July 10, 1874, the City Council ordered the grading and other improving of said Hickory Street for about 353 feet west of Mississippi Avenue, being that eastern portion thereof dedicated in its full width by the owners of the land; that, by ordinance 9295, January 18, 1875, the grade of that portion of said proposed portion of Hickory Street was fixed (at a point 250 feet west of Mississippi Avenue) at an elevation of eighty feet above the city directrix; that, being so ordered to cause said portion of said proposed street to be graded, paved, and otherwise improved, the city engineer contracted with Skrainka and Weiths to do such grading and other work, and they were about to commence the same, that heretofore the grade of said street, as indicated by former city engineers, was a straight line from the grade of Mississippi Avenue to Armstrong Avenue, which avenues intersect Hickory Street, and to the grade of which Hickory Street must conform, and so has plaintiff always understood and acted; that the surface of the land on Hickory Street is above the actual grade of the avenues, but much lower than the grade fixed by ordinance 9295; that to conform to this last grade will necessitate an embankment along the whole 353 feet; that for a long time said 353 feet and said strip off of plaintiff's land, within Hickory Street as proposed, from Mississippi to Armstrong Avenues, had been used as a public highway by the public and plaintiff, but that the new grade rendered plaintiff's land absolutely inaccessible, and the street impassable; that, by its Charter (art. 8, sec. 7), the Council was authorized to order the improvement of streets and highways, but was forbidden to order such improvement of streets or highways not dedicated or opened according to law; that, therefore, such grading, etc., were wholly unauthorized and forbidden by the Charter; that said 353 feet of Hickory Street is without outlet, is no thoroughfare, is not opened, does not constitute a street, alley, or public highway; that the proposed work threatens great loss to plaintiff; that all these facts have been laid before the Council by a memorial, but were not considered by that body before its late adjournment; that, before its next meeting, the mischief will be done, unless arrested by injunction, and will inflict on plaintiff damage for which no adequate compensation can be made; wherefore he prayed an injunction, etc.

Thereupon one of the judges of the Circuit Court, on August 14, 1875, granted a restraining order; and, on October 4, 1875, a motion to set this order aside was made, for the reasons, substantially, that the petition showed no cause for it. On the same day the city and the other defendants demurred to the petition, (1) because it did not state facts sufficient to constitute a cause of action; (2) because, under the allegations of the petition, plaintiff was not entitled to the relief prayed for; (3) because it appeared that Hickory Street had been dedicated to public use as far as defendants intended to improve it; (4) because the city had authority to establish the grade of any street, as it is alleged that she had established the grade of Hickory Street; (5) because the city had power by ordinance to direct the improvement of any street, when dedicated to public use, and such dedication as to Hickory Street was admitted; (6) because it did not appear that plaintiff's damages would be irreparable.

The court, on January 12, 1876, overruled the motion to dissolve, and, on January 24, 1876, overruled the demurrer. Defendants excepted to the overruling of the motion, and to the overruling of the demurrer, and declined to plead further; and, final judgment being thereupon given, they made a motion for a rehearing, and appealed to this court.

In behalf of the defendants it is urged (1) that the City Council is authorized to establish, open, widen, pave, or otherwise improve all streets, etc., by ordinance; (2) that Hickory Street was extended by ordinance; (3) that...