Bailey v. Culver

• Decision Date: 09 May 1882
• Citation: Bailey v. Culver, 12 Mo.App. 175 (Mo. App. 1882)
• Parties: CHARLES H. BAILEY ET AL., Appellants, v. W. H. CULVER ET AL., Respondents.
• Court: Missouri Court of Appeals

12 Mo.App. 175

CHARLES H. BAILEY ET AL., Appellants,

v.W. H. CULVER ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

May 9, 1882.

1.There can be no dedication of streets and alleys to private use.

2.Neither the commissioners nor the heirs in partition can divest of its public character an alley dedicated to public use.

3.A dedication to public use by acquiescence of the owner is shown by proof that the owner marked out the alley by brick walls, and leased the lots on each side thereof, ceased to return it for taxation for years, and until his death left it open to public use, and did no act inconsistent with an intention to dedicate it.

4.The owner of land abutting on an alley has a right in the easement beyond his line, only as one of the public, and cannot object to the vacation of the alley two hundred feet from his lot, provided he still has proper egress from his lot.

5.That the municipality deflects the alley at a point two hundred feet distant from the plaintiff's lot furnishes no ground for damages, or for enjoining another from building across the former exit of the alley which has ceased to be a public highway.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

JOHN K. TIFFANY and KLEIN & FISSE, for the appellants: Under the circumstances and the law applicable thereto, the plaintiffs are entitled to an easement of a right of way over the strip of ground which the defendants have appropriated to their own use.-- Wiggins v. McCleary,49 N. Y. 346;Smyles v. Hastings,24 Barb. 44(s. c. in court of appeals, 22 N. Y. 217);Bissell v. Railroad Co.,23 N. Y. 61;Fisher v. Beard,32 Iowa, 346, 355;Bump v. Sanner,37 Md. 621.This easement so created, is a private right in each lot-owner in the block to use and pass over the strip of ground from end to end, “the last inch as well as the first inch” thereof, without interruption, obstruction, or interference on the part of any one.-- Child v. Chappell,5 Seld. 246;Carlin v. Paul,11 Mo. 32, 33;Clark v. Parker,106 Mass. 554.And one lot-owner will not be permitted to obstruct or debar another lot-owner against his consent, in the free and full use thereof.-- Hall v. McCaughey,51 Pa. St. 43.But even if the public also has acquired an easement in and to the alley by dedication or any subsequent use, that does not impair or take away the private right of an easement appurtenant to his lot in each lot-owner in the block which was created by the dedication itself.-- Haynes v. Thomas,7 Ind. 38; Kerr on Inj. (2d ed.) *262;Street Railway Co. v. Cumminsville,14 Ohio St. 523;Lutterloh v. Mayor,15 Fla. 306;Crawford v. Delaware,7 Ohio St. 459-469;Leffler v. Burlington,18 Iowa, 361.The fact that the Culvers have opened an alley-way deflecting from the main alley into St. Charles Street is not a defence, nor an answer to the plaintiff's action.-- Weathered v. Bray,7 Ind. 706(affirmed in25 Ind. 352-359);Krehl v. Burrell,L. R. 7 Ch. Div. 551, 552;Bannon v. Augier,2 Allen, 128.Whenever rights, such as the plaintiffs here have shown themselves to be entitled to, have been invaded in the manner in which the defendants have interfered with them as shown in the record, equity takes cognizance of the wrong and grants full and complete relief.-- Krehl v. Burrell,L. R. 7 Ch. Div. 551(affirmed inL. R. 11 Ch. Div. 146);Gaskin v. Balls,L. R. 13 Ch. Div. 324; 2 Story's Eq. Jur. (10th ed.), sect. 926;Tallmadge v. East River Bank,26 N. Y. 105(s. c. in court below, 2 Duer, 614);Pettibone v. Hamilton,40 Wis. 402, 416;Attorney-General v. Goderich, 5 Grant (Upper Can.), 401;The Commonwealth v. Rush,14 Pa. St. 186.An injunction will be granted to prevent the erection of a building under such circumstances.-- Rutherford v. Taylor,38 Mo. 315;Pettibone v. Hamilton,40 Wis. 402, 416;Lutterloh v. Mayor,15 Fla. 306;Krehl v. Burrell,L. R. 7 Ch. Div. 551(s. c. affirmed, L. R. 11 Ch. Div. 146).And if, notwithstanding the commencement of the suit, the defendant has completed the building before the suit has been brought to hearing, the injunction will be mandatory to remove the building which invades or destroys the easement.-- Krehl v. Burrell,L. R. 7 Ch. Div. 551(s. c. affirmed, L. R. 11 Ch. Div. 146);Gaskin v. Balls,L. R. 13 Ch. Div. 324, 327; Kerr on Inj. (2d ed.) *50;Clark v. Martin,49 Pa. St. 298.

MARTIN & LACKLAND, for the respondents: Dedication to public use is established by proof of acts of the owner which disclose his interest to devote the land to public use.-- Hannibal v. Draper,15 Mo. 634;27 Mo. 211;Carlin v. Paul,11 Mo. 32;Price v. Plainfield,40 N. J. 608;Gamble v. St. Louis,12 Mo. 617;Skrainka v. Allen,2 Mo. App. 337.The deflection or vacation of an alley may be made or accomplished where another way is left open.-- Carter v. New York,42 N. Y. 399;Killinger v. Railroad Co.,50 N. Y. 206;Fearing v. Irwin,55 N. Y. 468.To maintain a mandatory injunction such as prayed for here, there must be a palpable violation of right.There must be no doubt about it.-- King v. McClurg,38 Penn. 76.There must be a substantial injury--a serious injury, not a trivial one.-- Fort v. Groves,29 Md. 188;Green v. Oaks,17 Ill. 249.

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

Peter Lindell, who died in 1861, acquired by purchase, in May, 1825, what is now known as block No. 164, in the city of St. Louis, bounded on the north by Washington Avenue, on the south by St. Charles, on the east by Seventh, and on the west by Eighth Street.In 1862, there was a voluntary partition among his heirs of this property, together with other large bodies of real estate in the city and its suburbs.Three commissioners were appointed by agreement, who made an elaborate report, with plats of the blocks, lots, streets, and alleys, and an allotment of their several shares to the ten heirs.This report was duly recorded, and accepted as final.On the plat of block 164 there was represented an alley twelve feet wide running straight through the middle of the block from Seventh to Eighth Streets, or from east to west.The report of the commissioners contained the following language:--

“And the said Sweringen, Dickson, and Clark examined and approved of the said surveys, maps, and plats of said Cozens, and of all the streets, lanes, and alleys laid down and described on said maps and plats; and each and all of said streets, lanes, and alleys are necessary to be established and dedicated, and are hereby established and dedicated, for the use of each and all of said heirs-at-law of Peter Lindell, deceased, as the same are laid down and marked on the said maps and plats and surveys of William H. Cozens, Esquire, the surveyor, and made a part of this report.”

The entire block No. 164, having frontages of two hundred and seventy feet each on Washington Avenue and St. Charles Street, was divided into twenty-three lots, of which ten had fronts of twenty-seven feet each, on Washington Avenue, and thirteen had fractional equal fronts of about twenty and two-thirds feet each on St. Charles Street.All the lots were bounded in the rear by the alley twelve feet wide.In October, 1879, the plaintiffs, holding under the partition above described, were owners of the three lots at the extreme southeast corner of the block, fronting about sixty-three feet on St. Charles, with a side line on Seventh Street.The defendants, holding under the same title, were owners of the entire west end of the block, having about one hundred and eight feet front on Washington Avenue, and about sixty-three feet on St. Charles Street.Desiring to erect on their property a large building for mercantile purposes, to cost $150,000, which should extend clear through from Washington Avenue to St. Charles Street, the defendants endeavored to obtain the consent of other property-owners in the block to a closing of the alley at its west end, and the substitution of a deflected exit into St. Charles Street, over part of the defendants' ground.Other property-owners consented, but the plaintiffs refused.The defendants then procured the passage of an ordinance by the municipal assembly of the city, whereby the west end of the alley, to the extent of eighty-six feet and nine inches in the north line, and seventy-four feet three inches in the south line, measuring from Eighth Street, was “vacated and abolished.”Among other stipulations in the ordinance, it was provided that the adjacent owners should dedicate, grade, and pave an alley, not less than twelve feet wide, commencing on St. Charles Street and running northwardly and eastwardly, to intersect with the alley not vacated, and further so described as to occupy ground belonging to the defendants.Provision was made also for an indemnifying bond in favor of the city, to be given by the defendants, against suits for damages, etc.The plaintiffs opposed the passage of this ordinance, and through all the proceedings protested and remonstrated against the closing of any part of the alley, as an unlawful and unjust invasion of their rights.The defendants erected their building in the manner proposed, and conformed to the provisions of the ordinance in opening and finishing the deflected alley.The plaintiffs then instituted this suit, praying that the defendants be compelled to remove their building, and restore the alley to its original condition, and that they be restrained by perpetual injunction from making or maintaining any further obstructions, etc.Upon final hearing the plaintiff's bill was dismissed.

It is contended by the plaintiffs, that there was vested in them, as a property right, an easement or right of way through the entire alley, as it existed before the obstruction, from end to end; that the city of St. Louis never acquired any property therein, or any control over the same, by which it could divest them of their right aforesaid, and that the passage of the ordinance and the obstruction complained of,...