Belcher's Sugar Ref. Co. v. St. Louis Grain Elevator Co.

• Decision Date: 02 June 1890
• Citation: 13 S.W. 822,101 Mo. 192
• Parties: BELCHER'S SUGAR REFINING CO. v. ST. LOUIS GRAIN ELEVATOR CO.
• Court: Missouri Supreme Court

13 S.W. 822

101 Mo. 192

BELCHER'S SUGAR REFINING CO. v. ST. LOUIS GRAIN ELEVATOR CO.

Supreme Court of Missouri.

June 2, 1890.

CITIES — LEASE OF WHARVES — PRIVATE USE.

1. The city of St. Louis leased to defendant, an elevator company owning an elevator on the river front, a portion of its unpaved wharf, for the purpose of erecting thereon "a shed or warehouse for storage and handling of grain or other merchandise in connection with the elevator," reserving the right to control the use of such buildings and grounds, and to terminate the lease on six months' notice, if it were desired to pave and extend the wharf. Held, that the lease is valid under the general power to erect, repair, and regulate wharves, and collect wharfage; and especially so under the charter, which gives power "to set aside and lease portions of the unpaved wharf for special purposes, such as the erection of sheds, elevators, and warehouses, * * * and for any purpose tending to facilitate the trade of the city."

2. By defendant's charter, railroads are to have a connection with its elevators, which are required to be so constructed as to accommodate the river interests, and give all facilities for storing grain in bulk or otherwise. Held that, although defendant may make reasonable charges, its property is subject to a public trust and to public regulation and therefore the lease is not invalid as granting a public franchise for private use.

3. By the act of incorporation, December 18, 1863, defendant was given power to acquire, free from condemnation, any real estate on the Mississippi river "not exceeding 500 feet frontage * * * in any one locality; * * * and the said corporation may also erect one or more grain elevators upon the public wharves," with the consent and under the direction of the city authorities. Held that, although defendant owned and occupied 500 feet of river frontage, it had power to lease and occupy a portion of the public wharf contiguous thereto.

4. The charter power to lease portions of the "unpaved" wharf applies to any portion not paved in a manner suitable for receiving and discharging passengers and freight; and a portion not used for that purpose, from which most of the macadam was washed away in 1873, and which has been used ever since as a scavenger dump, is not paved, in the sense of the charter.

5. Plaintiff corporation, having shown no violation of duty to itself, cannot complain of the acts of defendant corporation on the ground of ultra vires. Only the state or defendant's stockholders can maintain an action on that ground.

Appeal from St. Louis circuit court; WILLIAM H. HOMER, Judge.

Jas. O. Broadhead, for appellant. Smith P. Galt, for respondent.

BLACK, J.

This is a suit to enjoin the defendant from erecting and maintaining a shed or warehouse for the storage of grain or other merchandise upon the wharf of the city of St. Louis. The circuit court on the first trial dismissed the petition, but the judgment was reversed, and the cause remanded, by this court. 82 Mo. 121. Pending that appeal the defendant erected the warehouse. The second trial resulted in a decree for the plaintiff requiring the defendant to remove the buildings, and restore the ground so that it might be used as a wharf.

The plaintiff is a corporation organized under the laws of this state; and the defendant, the St. Louis Grain Elevator Company, was organized under the special act of December 18, 1863, the third section of which provides: "The corporation hereby created shall have power to acquire, by purchase or otherwise, any real estate in the city of St. Louis, fronting on the Mississippi river, not exceeding 500 feet frontage on the same in any one locality. The real estate so obtained by this corporation shall not be subject to condemnation for any purpose so long as the same shall be used for grain elevators, and uses connected therewith; and the said corporation may also erect one or more grain elevators upon the public wharves of the city of St. Louis, with the consent and under the direction of the constituted authorities of the same." The elevators are to be so constructed as to give railroads a track-way through the same, and so as "to accommodate the river interests, giving all requisite facilities for the elevating and storing grain in bulk or otherwise, and so as not to interfere with or obstruct the navigation of the river. No provision of this charter shall be construed to interfere with the right of the city to collect wharfage within the city limits." Besides the general powers to establish and regulate public wharves and docks, and to collect wharfage, the charter of the city of St. Louis of 1876 provides that the mayor and assembly shall have power, by ordinance, "to set aside and lease portions of the unpaved wharf for special purposes, such as the erection of sheds, elevators, and warehouses, and for railroad tracks, for quay places for the loading of lumber for mills, for cotton presses, for manufactories, and for any purpose tending to facilitate the trade of the city; but no permit to use any portion of the wharf, or any lease of the same, shall be granted for a term exceeding fifty years."

The city, by an ordinance approved the 6th August, 1864, established a wharf, "as a public highway for wharf purposes," along the river front from Biddle street to the northern boundary of the city. The streets passed, going north from Biddle, are Ashley, O'Fallon, Bates, etc. City block 226 lies between Ashley and O'Fallon streets, and city block 225 lies between O'Fallon and Bates streets. Both of these blocks are bounded on the west by Lewis street, and, at the date of the ordinance establishing the wharf, extended east to the river, a distance of about 300 feet. The wharf, as established by the ordinance, was opened under condemnation proceedings instituted by the city in 1867; and by virtue of these proceedings the city condemned the greater portion of the above-designated blocks, leaving only a strip along Lewis street having a width of 80 feet. The plaintiff owned a large portion of both of these blocks, the parts owned by it extending from Lewis street to the river, and received as a compensation for that part which was condemned the sum of $21,643. Before the institution of this suit the plaintiff had acquired additional property in these blocks, so that, at the commencement of the suit, it owned 180 feet front on Lewis street in block 226; the whole front of that block being 215 feet. On this property, and that owned by plaintiff in block 225, there are coal-sheds, and other buildings used in connection with the refining works. Plaintiff also owns several blocks of ground on the west side of Lewis street, with large buildings thereon, wherein it carries on its business of refining sugar. The business is extensive, and it is estimated that 75,000 tons of sugar are received annually from boats which are unloaded at the city wharf. The defendant, on and prior to 18th August, 1879, owned and operated an elevator which had been built, under its charter, upon the river front, and extended southwardly from the south line of Ashley street for a distance of 500 feet. On the last-mentioned date the proper city officers, in conformity with an ordinance dated the 8th August, 1879, leased to defendant 90 by 298 feet of the wharf, extending along the water-line from the south line of Ashley street northward to O'Fallon; the part thus leased being the entire river landing in front of block 226, and including the foot of Ashley street extended. This lease was for the term of 20 years, upon an annual rental of $300, and provided that the leased premises should be used by the elevator company "for erecting and maintaining thereon a shed or warehouse for storage and handling of grain or other merchandise in connection with the use of the elevator."

On the foregoing state of facts the circuit court dismissed the plaintiff's bill, but that judgment was reversed, and the cause remanded, by this court. Thereafter the city passed an ordinance approved December 10, 1884; and in compliance with and in pursuance to this ordinance the defendant surrendered the prior lease, and the proper city authorities executed to it a new one, covering the same portion of the wharf, for a period of 15 years, upon the same rental and for the same purposes, save that the new lease contains these additional stipulations: "The city of St. Louis reserves the right to cancel this lease on six months' notice in writing to the lessee, whenever it shall elect to pave and extend the wharf on the premises mentioned aforesaid. The buildings and structures placed on the said premises by the lessee, and the said premises, shall during the term of this lease be used by the lessee for the storage and handling and loading and unloading of grain and merchandise, and the loading and unloading of boats and barges and vessels and railroad cars engaged in carrying the same, and for no other purpose. The city of St. Louis shall retain control over the buildings and structures placed on said grounds by said lessee, and over the use of the same by said lessee, and over the ground covered by this lease, and may at any time, by ordinance, prescribe regulations governing the same, and the business of said lessee." The defendant, by an amended answer, set up this new lease, and now justifies under it.

1. The plaintiff insists that the last lease is as objectionable as the first one, while the defendant insists that it was made in exact conformity to the rulings of this court on the former hearing. The property in question was condemned for wharf purposes, and it cannot be appropriated to a different and inconsistent use; nor can it, or any part thereof, be disposed of by the city for private purposes. These general propositions were asserted in strong terms when the case was here before. They are again contended for on the one side, and conceded on the other,...