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

• Decision Date: 07 June 1881
• Citation: 10 Mo.App. 401
• Parties: BELCHER SUGAR REFINING COMPANY, Appellant, v. ST. LOUIS GRAIN ELEVATOR COMPANY, Respondent.
• Court: Missouri Court of Appeals

10 Mo.App. 401

BELCHER SUGAR REFINING COMPANY, Appellant,

v.ST. LOUIS GRAIN ELEVATOR COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 7, 1881.

1. A condemnation of private property for “a highway for wharf purposes,” is a condemnation for a wharf simply.

2. The erection, upon a wharf, of a warehouse to be used in connection with a grain elevator is not necessarily inconsistent with the original purpose of the condemnation for wharf purposes.

3. Where a city, having condemned property for use as a wharf, leases, under legislative authority, a portion thereof, for the erection of an elevator warehouse, that the revenue from the wharf so leased may be appropriated, for a limited time, to the lessee, is not conclusive that the wharf is appropriated for private purposes.

4. A wharf which has been “rip-rapped,” but which is covered several feet deep with a mud deposit and is unfit for use as a roadway, is not paved, within the meaning of a charter provision authorizing the leasing of a portion of an unpaved wharf.

5. That it is ultra vires of the lessee to take a lease of the quantity of land here leased, is no ground of injunction to prevent its use under the lease, at the suit of the owner of the fee in the land condemned.

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

Affirmed.

SMITH P. GALT, for the appellant: The premises in dispute in this case were not an “unpaved” portion of the wharf, and therefore could not be leased by the city to the defendant.--Cooley's Const. Lim. 57; Smith on Stat. & Const. Constr., sects. 478, 481; King v. Inhabitants, 10 Barn. & Cress. 520; Walker v. Harris, 20 Wend. 555; Martin v. Hunter's Lessee, 1 Wheat. 326; Cannon v. New Orleans, 20 Wall. 577; Packet Co. v. St. Louis, Reporter (June 23, 1880), 803; Schultz v. Railroad Co., 36 Mo. 13. Whether the premises in dispute were a paved or unpaved portion of the wharf, the lease of the city to the defendant and the defendant's proposed occupation of the premises are illegal: First, because it is a diversion of the use in the property condemned, and a violation of the trust assumed by the city; secondly, it is placing an additional burden upon the property, the fee thereof being in the plaintiff, not contemplated in the condemnation proceedings; thirdly, it being an additional burden, if the proposed warehouse is considered for public use, it is taking and damaging the plaintiff's property without compensation, contrary to the common law and section 21, Artcle II., of the Constitution of Missouri; if considered for private use, it is in violation of section 20, Article II., of the Constitution of Missouri; fourthly, it is a violation of the city's implied contract made with the plaintiff, when it paid to the city the $2,350, as benefits to its property, that the city would hold the property strictly in accordance with the purposes expressed, and by which the company would be benefited, and that they would not be changed, so that those benefits would be destroyed; fifthly, the defendant's erection is for private use, and is a nuisance; sixthly, on all these questions the plaintiff, by reason of being adjoining and adjacent to this portion of the wharf, as well as the owner in fee of the premises, may invoke the power of a court of equity, and there obtain protection by injunction from the threatened wrong.--Cooley's Const. Lim. 53, 57, 394, 524, 529, 557; Currier v. Railroad Co., 11 Ohio (N. S.), 231; Miami Coal Co. v. Wighton, 19 Ohio (N. S.), 560; Allen v. Jones, 47 Ind. 442; Dyckman v. Mayor, 5 N. Y. 439; Water-Works Co. v. Burkhardt, 41 Ind. 364; Gilbert v. Turnpike Co., 3 Johns. Cas. 107; Railroad Co. v. Campbell, 62 Mo. 588; Cunningham v. Railroad Co., 61 Mo. 33; Ellis v. Railroad Co, 51 Mo. 203; Railroad Co. v. Canal Commissioners, 21 Pa. St. 22; The Commonwealth v. Railroad Co., 24 Pa. St. 159; Chenango Bridge Co. v. Binghampton Co., 27 N. Y. 93; Bradley v. Railroad Co., 21 Conn. 306; Baltimore v. Railroad Co., 21 Md. 50; Illinois R. Co. v. St. Louis, 2 Dill. 70; Leslie v. City of St. Louis, 47 Mo. 477; The State v. Noyes, 47 Me. 207; Hannibal v. Railroad Co., 49 Mo. 481; Allen v. Jones, 48 Ind. 442; Barclay v. Howell's Lessee, 6 Pet. 31; The State v. Laverack, 34 N. J. L. 202; The Commonwealth v. Rushe, 14 Pa. St. 186; Warren v. Lyons, 22 Iowa, 357; Board of Education v. Edson; 18 Ohio St. 225; Newell v. The People, 7 N. Y. 97. The defendant is limited in its charter to the five hundred feet frontage on the river. As it has already acquired, and now occupies the five hundred feet, it cannot occupy the premises in question, which would make its river frontage eight hundred feet.--Defendant's Charter, sect. 3; Beaty v. Lessee of Knowler, 4 Pet. 29; Agar v. Canal Co., Cooper's Cas. 79.

BROADHEAD, SLAYBACK & HAEUSSLER, for the respondent: The Legislature having empowered the city to make this lease, thereby determined what use of this condemned property was most beneficial to the public.--Cooley's Const. Lim. (2d ed.) 521, 553; Muse v. Railroad Co., 21 Ill. 522; West v. Bancroft, 32 Vt. 367; Kelsy v. King, 32 Barb. 410; Ohio R. Co. v. Applegate, 8 Dana, 289. The erection, under the sanction of the city, of an elevator to be used for handling grain at the wharf, and at all time under the direction and control of the city authorities, is such a use of the wharf property as does not fall without the scope of the dedication, and such a structure would not, therefore, be a public nuisance.-- Illinois R. Co. v. Elevator Co., 2 Dill. 70; Hinchman v. Railroad Co., 2 C. E. Green, 75. “What the law authorizes cannot be a nuisance, such as to give a common-law right of action.”-- Transportation Co. v. Chicago, 99 U. S. 635. Whatever right the State may have to prevent the erection of an elevator or other structure erected on the wharf without legal authority, it is only in virtue of special and individual injuries, that private persons can ask for equitable relief.-- Railroad Co. v. Ward, 2 Black, 485; Wheeling Bridge Case, 13 How. 518; Higbee v. Railroad Co., 4 C. E. Green, 276. The power of the public over highways is not confined to the sole purpose of travel.-- Moses v. Railroad Co., 21 Ill. 522; West v. Bancroft, 32 Vt. 370. When private property is devoted to public use it is subject to public regulation.-- Munn v. Illinois, 94 U. S. 130.

BAKEWELL, J., delivered the opinion of the court.

This is an application for an injunction to restrain defendant from erecting a warehouse on the bank of the Mississippi River at St. Louis. On hearing, the Circuit Court dismissed the bill. It appears that in August, 1864, the city of St. Louis, by ordinance, established, and authorized the land commissioner to commence proceedings to cause to be opened according to law, what the ordinance speaks of as “a public highway for wharf purposes,” from the south side of Biddle Street to the northern limits of the city. The condemnation proceedings were concluded in 1867. Benefits to the amount of $2,350 were assessed against plaintiff, and the city paid to plaintiff $21,643, being the sum less benefits and costs, assessed for the taking and condemnation of plaintiff's property in making the wharf; and plaintiff gave to the city a receipt for this money, in which the following language is used: “The sum hereby receipted for being in full for the value assessed in said proceedings for the premises aforesaid; and the said Belcher Sugar Refining Company covenants to and with the city of St. Louis that said company shall and will, in case of failure of title to all or any part thereof [that is, to the property described in the receipt as taken from plaintiff for the wharf], pay and refund to the said city the sum aforesaid, or such parts thereof as shall be in proportion to such failure of title.” This instrument is under seal of the company.

Plaintiff is engaged in refining sugar. The wharf, as established, was about two hundred and twenty feet wide; its western line being eighty feet east of Lewis Street, which bounds city blocks 226 and 225 on the west. Plaintiff owned almost all of block 225 and thirty feet of block 226, these blocks extending to the river. After the condemnation, and before the lease which will be spoken of, plaintiff acquired almost all of block 226; its deed as to part calling for the river as the boundary. It also owns several blocks west of these two blocks, on which are the extensive buildings used for its business. Plaintiff receives annually seventy-five thousand tons of sugar, which is unloaded on the wharf at a point about a mile south of the property in question and hauled to the refinery on drays.

In 1871, the city graded the wharf in front of these two blocks; and in 1872, three hundred and fifty feet of this wharf was rip-rapped by the city, at a cost of $3,200. This rip-rapping was originally intended as an approach to the river, but next year's high water took all the macadam off the rip-rap; and, as the dyke on the opposite bank caused very deep water and a swift current, just at this point, the city allowed the scavenger dump to be established there. There had to be a wagon-road made to this scavenger dump, because the rip-rapping was covered four feet deep with mud and deposits. This made the bank so steep as to be difficult to climb. There was evidence tending to show that the river front at this place had not been fit for use as a wharf for some years before the lease by the city to defendant.

The City Charter in force at the date of defendant's lease authorizes the city of St. Louis (Art. III., sect. 26, subdivisions 2 and 4; Rev. Stats. 1585) to establish, open, vacate, alter, widen, extend, pave, and otherwise improve, all wharves; to erect docks and wharves; and, “to set aside or 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; but no permit to use any portion of...