Campbell v. City of Glendale
| Citation | 211 S.W.2d 519 |
| Decision Date | 18 May 1948 |
| Docket Number | 27447 |
| Parties | CAMPBELL et ux. v. CITY OF GLENDALE |
| Court | Court of Appeal of Missouri (US) |
'Not to be reported in State Reports.'
Edwin Rader, of Clayton, for appellants.
John W Giesecke, of St. Louis, for respondent.
McCULLEN
This suit was brought by appellants, as plaintiffs, to recover from respondent, as defendant, damages which plaintiffs alleged they suffered by reason of defendant's action in vacating a certain strip of land in a dead end street called Andrew Drive contiguous in part to the rear line of plaintiffs' land in defendant city. The trial court sustained defendant's motion for judgment on the pleadings and plaintiffs duly appealed.
Plaintiffs' petition alleged that defendant is a Municipal Corporation under the laws of Missouri and is a city of the fourth class that plaintiffs are the owners of real estate in defendant city described as follows: 'Lot 18 of Lexington Square according to plat thereof recorded in plat book 36, page 45, of the St. Louis County Recorder's office.' The petition further alleged that said lot is 50 feet wide and approximately 164 feet in depth, and faces on Nancy Carol Lane, which runs in an eastwardly and westwardly direction, and that said property abuts Andrew Drive on the rear; that said Andrew Drive runs in a northwardly and southwardly direction and comes to a dead end at the north property line of these plaintiffs; that said property is improved with a five-room brick bungalow, breezeway and brick garage; that said improvements were erected by Lawrence D. Campbell, a builder and contractor, and the father of plaintiff Forrest S. Campbell; that before said Lawrence D. Campbell began the construction and erection of said improvements he obtained from the office of the City Clerk of defendant, City Building Permit No. 867, dated April 18, 1946, which authorized the building of the improvements aforesaid and designated as 975 Nancy Carol Lane; that at the time of the issuance of said building permit the said Lawrence D. Campbell filed with the said city a detailed plan showing the erection of a brick garage attached to the house with a breezeway, and showing the driveway to the garage from the north boundary of said lot into Andrew Drive.
It was further alleged in plaintiffs' petition that on March 25, 1947, the defendant city passed and approved Bill No. 823, Ordinance No. 786, which ordinance was duly signed by its Mayor and City Clerk, and which vacated the south three feet of Andrew Drive, causing the title to said three foot strip to revert to the owners facing Andrew Drive, making it impossible for plaintiffs to enter their property from the rear, and that there being insufficient from on either side of the house to erect a front driveway, it thereby rendered the brick garage useless to plaintiffs; that under Section 7212, R.S.Mo.1939, Mo.R.S.A., plaintiffs are entitled to damages by reason of the vacation of the three foot strip of Andrew Drive, and that said vacation of said strip has damaged and depreciated the value of plaintiffs' property in the sum of $ 5000. Plaintiffs prayed judgment for said sum of $ 5000.
In its answer defendant, for its first defense, alleged that the petition of plaintiffs failed to state a claim against defendant upon which relief could be granted. For a second defense defendant admitted that Andrew Drive, running in a northwardly and southwardly direction, came to a dead end at the north property line of the property described in the petition, and denied each and every other allegation in plaintiffs' petition. Thereafter, defendant filed its motion for a judgment on the pleadings, under Section 68, Laws Mo.1943, p. 376, Mo.R.S.A. § 847.68, which the court sustained on November 8, 1947, and entered the following judgment: 'Ordered, adjudged and decreed that the motion of the defendant for judgment on the pleadings be sustained, and it is accordingly ordered, adjudged and decreed that plaintiffs take nothing by their writ and that the defendant go whereof without day and recover of plaintiffs its costs and have execution therefor.'
Plaintiffs, as appellants in this court, contend that the trial court erred in sustaining defendant's motion for judgment on the pleadings and argue that Section 7212, R.S.Mo.1939, Mo.R.S.A. § 7212, specifically authorizes the ascertainment of damages to them upon the vacating of any part of the street involved. There can be no doubt that said statute, Section 7212, supra, does provide that all damages sustained by the citizens of the city of owners of property 'shall be ascertained as prescribed in that portion of this article relating to the condemnation of private property for public use,' but we are of the opinion that said statute has no application to plaintiffs with respect to their ownership of Lot No. 18 of Lexington Square subdivision in its relation to Andrew Drive as involved in this action. We shall refer to said statute later herein.
It is true that plaintiffs' petition alleged that said lot No. 18 'abuts' Andrew Drive on the rear, but it shows by that very allegation that it does not 'abut' Andrew Drive within the legal significance of that word, as a basis for damages, as defined by our Supreme Court in a decision to which we shall presently refer. The petition on its face shows that said lot No. 18 does not face or front on the side lines of Andrew Drive, but that the north end of said lot touches the south end of Andrew Drive where Andrew Drive comes to a dead end with the north end line of plaintiffs' lot No. 18.
Plaintiffs' lot No. 18 is one of a series of lots in Lexington Square subdivision which front on the north or side line of Nancy Carol Lane. Nancy Carol Lane runs in an eastwardly and westwardly direction. Lot No. 18 and lot No. 19 are contiguous in part at their rear ends to the dead end of Andrew Drive -- lot No. 18 () being so contiguous for only seven feet three inches. There are a number of other lots in said Lexington Square subdivision which, like lot No. 18, front on the north or side line of Nancy Carol Lane, but such other lots are not contiguous to and do not abut or touch any part of Andrew Drive. The lay of lots in Lexington Square subdivision which do not front on Andrew Drive, of which lot No. 18 is one, as well as the lay of the lots in Glen Ridge subdivision, which do front on the side lines of Andrew Drive, are shown in a scale drawing made and certified to by the City Engineer of defendant city, which is attached to the brief of defendant-respondent filed in this court. There is nothing in the record to show that said scale drawing was filed in the trial court, but it was filed in this court without objection, and its correctness has not been questioned by plaintiffs herein.
We are of the opinion that the rule of law pertaining to 'abutting' property, as declared and applied in the case of Kingshighway Supply Company et al. v. Banner Iron Works et al., 266 Mo. 138, 181 S.W. 30, 32, is applicable to the facts alleged in plaintiffs' petition herein and must be held to be controlling in the decision of this case.
In said last named case plaintiffs therein brought suit as the owner and lessee respectively of certain real estate in City Block No. 4095 of the City of St. Louis against the Banner Iron Works and Ernest C. F. Koken, trustee, also owners of property, in said City Block No. 4095, and the City of St Louis asking for a decree nullifying an ordinance of the City vacating a portion of the north and south alley which ran partly through said block. The trial resulted in a decree in favor of plaintiffs, adjudging the ordinance void and enjoining the defendants from closing the alley, and commanding them to remove all obstructions they may have placed therein. From said judgment defendants appealed to the Supreme Court. It appeared from the record that the statement of the case made by counsel for respondents therein, and which was adopted by the court in stating the facts, that the alley in question was the only rear outlet to plaintiffs' property, which had an undisputed value of $ 30,000. The alley was used as a means of egress and approach to the rear portion of plaintiffs' land for a period of over twenty-five years, and at times had been the only means of egress and approach to plaintiffs' property with wagons and teams. The ordinance in question was designed to close that portion of the alley abutting plaintiffs' property, and to turn the same over to the defendants therein. The plaintiffs alleged in their petition that the vacation of the alley upon which their property abutted served no useful purpose; that the ordinance was passed solely for the benefit of the Banner Iron Works, and that it took away plaintiffs' only means of egress and approach to the rear portion of defendants' property; that the rights acquired by the plaintiffs established a special easement in said alley through the grant in the original dedication, which could not lawfully be taken away from them by the City in the manner in which the ordinance was passed; that the attempted passage...
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