1. The statute provides that an injunction may issue in aid of a civil action when the relief, or any part thereof, consists in restraining some act of defendant, the commission of which would injure plaintiff; and Rev. St. 1889, § 2040, provides that a plaintiff may unite in the same petition as many causes of action as arise out of the same transaction. Held, that one may in the same action seek to abate a nuisance, pray for injunctive process, and for damages arising from the nuisance.
2. In order to enable an individual to maintain an action for injuries resulting from a public nuisance, it is necessary for him to show that he has sustained special damages over and above the injury suffered by the community at large.
3. Where, in a suit to abate a public nuisance, from which plaintiff claimed to have suffered special damages, the court made no special finding as to the existence of the nuisance, but found that plaintiff was not entitled to recover, the latter finding amounted to a finding on the existence of the nuisance.
4. An individual sued for the abatement of a public nuisance consisting of fruit stands, etc., which he alleged defendants had erected, in the city, on land dedicated to the public, but which defendants claimed, and of which they had been in possession many years, and the city was not a party. Held, that the court was not required to determine the question of dedication, defendants' title, etc.
Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.
Suit by Maggie C. Baker against E. E. McDaniel and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.
James Baker, Chas. J. Wright, and Wm. A. Gardner, for appellant. Tatlow & Mitchell, for respondents.
Statement.
FOX, J.
That we may fully understand this case as presented by the pleadings in the trial court, we here insert them:
"On the 22d day of December, 1899, the plaintiff below and appellant here filed her petition in the Greene county circuit court, and sued out a writ in due form thereon, returnable to the January term, 1900, of said court, which petition is as follows: The plaintiff, for her cause of action in the above-entitled cause, states that she is, and for the last sixteen years has been, the owner in fee simple of the real estate situated in lots seventeen, eighteen, and twenty therein in block five of the original town of Springfield, in Greene county, state of Missouri, bounded and described as follows: Beginning at a point twelve (12) feet east of the northwest corner of the public square; running from thence north fifty (50) feet; thence west one hundred and twenty-nine (129) feet; thence south eighty-one (81) feet; thence east one hundred and seventeen and a half (117½) feet; thence north thirty-one (31) feet; thence east twelve (12) feet, to the beginning. Plaintiff further states that at the time she acquired the title to said land James Baker, her husband, became the owner in fee of the remaining part of said lot eighteen, and a strip 12 feet wide off of the west side of said lot seventeen, lying adjoining it in the east; that the lands so owned by her and her husband in lot seventeen constituted a strip 12 feet in width, extending along the west side of said lot, from the public square north to Olive street, a distance of one hundred and seventeen and a half (117½) feet, that said strip, with 3 feet in width more along the east side thereof added to it, making fifteen (15) feet in width in all, was dedicated to public use as a public highway more than fifty years prior to this date by the then owners thereof, and has been continuously in such use during the whole of that time. That said dedication was and is for public use for pedestrians only, and is a footway, and was, in effect, an extension of the sidewalk along the west side of the public square, thence to Olive street on the north, and is now generally known by the name of the `Baker Arcade.' Plaintiff further states that the ground adjoining said arcade on the west was divided into eight different lots fronting on the same soon after said dedication was made; that the only access to them was by it, and that it has continued
to be a public highway in much use ever since its dedication, and that when plaintiff purchased the property so owned by her it was an important and active business center, which had added greatly to the value of her property, and constituted the chief inducement to her purchase; that at the time she purchased the same all of said buildings were occupied for business purposes, and had been so from the time of their construction until removed by plaintiff in 1885 to make room for a large and commodious four-story brick structure 81 feet wide by 100 feet long, completed by her in the year 1886; that said building fronts 50 feet on said arcade on the west side thereof, and 31 feet on the public square; and for the purpose of widening and making the said arcade more useful the front of said building was set back 10 feet west of the west line thereof, making the arcade 25 feet wide instead of 15, as formerly. Plaintiff further states that in the year 1868 the ancestors of the defendants herein, and from whom they derived their title to the same, were the owners in fee of all of said lot seventeen (17) except the 12-foot strip embraced in said arcade as aforesaid; that they then erected thereon a large brick building three stories in height, now known as the `City Hall,' the west wall of which corresponds with the east line of said 3-foot strip which constitutes a part of said arcade, thereby confirming said former dedication and rededicating the same. Plaintiff further states that in the year 1886 James Baker, her husband, reconstructed said arcade by elevating the grade thereof its entire length and breadth 2 feet, and by paving the same with nice flagstones at a cost of five hundred dollars; that defendants consented to and sanctioned and approved of said reconstruction, and by so doing they fully rededicated said 3 feet to public use, and by permitting and sanctioning the expenditure of the money which such reconstruction cost they are estopped from denying such dedication. Plaintiff further states that said arcade extends along the western line of defendants' lot and building, making it a corner lot instead of an inside lot lying in a closed corner, out of the way of public passage as formerly, and adds more than fifty per cent. to value of said property; that the contribution of a part of the ground occupied by said arcade confers upon the remainder of said lot and the owners thereof valuable private easements or franchises in the whole of it, which did not exist and could not be exercised without it. Plaintiff further states that since the reconstruction of said arcade the whole of it has been in continuous public use as such highway without interruption until the 26th day of November in the year 1890, when the defendants, at a late hour in the night, secretly slipped a cigar stand in there, and placed it upon the paving next to the wall of their building, thereby occupying all the ground so dedicated to public use by their ancestors and themselves, and a strip 2 feet and 6 inches in width dedicated as aforesaid by plaintiff and those from whom she derived title, extending from the south to the north end of the land owned by her in said lot 17, to which they have not even a color of title. Plaintiff says that said stands are small temporary structures made of boards, and consist of a partition on their west side and at each end, set against the wall of said city hall building, which constitutes the east wall, and are covered with the same kind of boards; that they are 5½ feet wide by 50 feet long; that they are too small for the transaction of the business carried on, and are only used for the storage of the goods kept for sale; that the customers and those who transact the business occupy the public way in the same manner as such business is generally transacted by the keepers on such stands in the public streets, and by so doing they have practically taken possession of and occupy the whole arcade for their private business, without any authority or license to do so; that a large portion of said stands are used for boot blacking and similar purposes, which are carried on by a number of colored men, who with them associate, occupy seats, much of the time, on the pavement in said arcade, constituting a band of loafers, making the place repulsive, instead of attractive, as it was intended to be. Plaintiff further states that said stands and the business carried on in connection with them materially obstruct and interfere with the public use of said arcade as a public highway, and constitute a grievous public nuisance; that they have and do materially injure the property owned by plaintiff fronting on the same, and have caused a reduction in the rental value of more than forty dollars per month; that she has been damaged by said nuisance and trespass to an amount not less than five thousand dollars in the aggregate. Plaintiff further states that, if the 3-foot strip of ground owned by defendants as aforesaid has not been dedicated to public use as hereinbefore stated, and is not in public use, the defendants have no right to use the remainder of said arcade as a means of access to and departure from their private property, that being a private use of the same, which cannot be exercised by any but those owning the property or have a franchise therein by owning a part of the property so in public use; that by so using it they are not only guilty of maintaining a nuisance as aforesaid, but have and are committing a trespass upon the property of plaintiff, thereby increasing the injury they have done to her, and...
