Christian v. The City of St. Louis

• Decision Date: 05 March 1895
• Citation: 29 S.W. 996,127 Mo. 109
• Parties: Christian, Plaintiff in Error, v. The City of St. Louis et al
• Court: Missouri Supreme Court

29 S.W. 996

127 Mo. 109

Christian, Plaintiff in Error, v. The City of St. Louis et al

Supreme Court of Missouri, Second Division

March 5, 1895

Error to St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

Louis A. Steber for plaintiff in error.

(1) Plaintiff, as an abutting owner, has an easement (an incident of his title) of ingress and egress, and a right of way over the alley; depriving him thereof is a taking of private property, for private use, without due compensation. Spencer v. Railroad, 120 Mo. 154; Brannon v Rohmeiser, 90 Ky. 48; Gargan v. Railroad, 89 Ky. 212; Horton v. Williams, 99 Mich. 423; Lahr v. Railroad, 104 N.Y. 268; Moose v. Carson, 104 N.C. 431; Winchester v. Capron, 63 N.H. 605; McQuaid v. Railroad, 18 Ore. 237. (2) Plaintiff's right as an abutting owner, to the use of this alley, is as much property as the lot itself. Spencer v. Railroad, 120 Mo. 154; Gargan v Railroad, 89 Ky. 212; Horton v. Williams, 99 Mich. 423. (3) Streets and alleys are not to be vacated at the instance of individuals interested only in the acquisition of the vacated property. Horton v. Williams, 99 Mich. 423. (4) The city can not permanently contract away the streets, etc., for private purposes. Ferrenbach v. Turner, 86 Mo. 416. (5) Where an ordinance is unreasonable and oppressive it may be vacated by the courts for that reason alone. Hannibal v. Tel. Co., 31 Mo.App. 23; Corrigan v. Gage, 68 Mo. 541; Railroad v. City, 85 Mo. 674; Kelly v. Meeks, 87 Mo. 401. (6) And whenever the city's power to pass an ordinance is in doubt, that doubt must be resolved against the corporation. Lackland v. Railroad, 31 Mo. 180; St. Louis v. Co., 96 Mo. 623; Wood on Nuisance [3 Ed.], sec. 742. (7) Plaintiff is entitled to equitable relief. Heitz v. St. Louis, 110 Mo. 618; Schopp v. St. Louis, 117 Mo. 131; Cummings v. St. Louis, 90 Mo. 259; Dubach v. Railroad, 89 Mo. 483; Glasgow v. St. Louis, 87 Mo. 678; Sheedy v. Brick Works, 25 Mo.App. 527; Horton v. Williams, 99 Mich. 423; Brannon v. Rohmeiser, 90 Ky. 48; Railroad v. Cape May, 35 N.J.Eq. 419.

W. C. Marshall, Lee & McKeighan and Lubke & Muench for defendants in error.

(1) Ordinance number 16852, is a valid enactment. Paragraph 2 of section 26, article 3 of the city charter, confers upon the mayor and assembly, the right "to establish, open, vacate, etc., all streets, avenues, sidewalks, alleys, etc." This power being absolute, it remains a question for the municipal assembly to decide whether an alley shall be kept open or vacated, and the reasons which influence their action are not material. State v. Clark, 54 Mo. 36; Railroad v. City, 85 Mo. 676; Glasgow v. St. Louis, 107 Mo. 198; McGee's Appeal, 114 Pa. St. 470; Paul v. Carver, 24 Pa. St. 207; Riggs v. Board, 27 Mich. 262; Stuber's Road, 28 Pa. St. 199; Brady v. Shinkle, 40 Iowa 576; Ellsworth v. County, 40 Iowa 571; Carr v. Oskaloosa, 45 Iowa 275; University v. Lexington, 3 B. Mon. 25. Fearing v. Irwin, 55 N.Y. 486. (2) Plaintiff is not an abutting owner on Lynch street and therefore can not be heard to object to the validity of ordinance number 13225. Plaintiff's property is located five hundred and twenty two feet from Lynch street. Plaintiff has access to his property on Kosciusko street running north and south, and Dorcas street running east and west. He is, therefore, in no manner interested in the validity or invalidity of ordinance number 13225, which vacates Lynch street between Main street and DeKalb street, any more than any other citizen in the city of St. Louis. Rude v. St. Louis, 93 Mo. 408; Canman v. St. Louis, 97 Mo. 92; Glasgow v. St. Louis, 107 Mo. 198; Fairchild v. St. Louis, 97 Mo. 85; Van De Vere v. Kansas City, 107 Mo. 89; Gates v. Railroad, 111 Mo. 34. (3) Whether, therefore, Lynch street be regarded as temporarily vacated for a term of ten years from January 1, 1885, as provided by ordinance number 13225, or whether it be permanently vacated as provided by ordinance number 16852, is wholly immaterial in this case.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

Plaintiff applied on September 13, 1892, to the circuit court of St. Louis for an injunction against the city and the two other defendants to restrain them from closing up an alley in the rear of his lot number 1, in 771, fronting twenty-five feet on the east side of Kosciusko street by a depth of 110 feet on the north side of Dorcas street to an alley fifteen feet wide, being the alley in controversy. All the remaining lots and property in this city block on both sides of this alley (which runs north and south) are owned by defendant Heitz and Missouri Car and Foundry Company.

The ordinance vacating this alley is numbered 16852 and is in these words:

"An ordinance to vacate the north and south alley in city block seven hundred and seventy-one.

"Be it ordained by the Municipal Assembly of the city of St. Louis as follows:

"Section 1. The north and south alley in city block seven hundred and seventy-one, between Dorcas street and that portion of Lynch street closed by ordinance numbered thirteen thousand, two hundred and twenty-five, is hereby vacated, and the property shall revert to the owners of the adjoining ground. Approved August 10, 1892."

The annexed plat indicates.

[SEE ILLUSTRATION IN ORIGINAL]

Plaintiff read the following ordinance also in evidence:

"Ordinance No. 13225.

"An ordinance to temporarily vacate certain streets and alleys.

"Be it ordained by the Municipal Assembly of the city of St. Louis, as follows:

"Section 1. Louisa street, between First street and a point one hundred and fifty feet east of DeKalb street; Lynch street between First street and DeKalb street, and the two alleys and one street in block 767, and the alley twenty feet wide in block 758, for a distance of one hundred and fifty feet north from Louisa street, are hereby vacated as public streets and alleys for the period of ten years from the first of January, 1885, and no longer; provided, however, that the city reserve the right to maintain and repair all the sewers and water pipes now constructed and laid, or which it may hereafter construct and lay in said streets and alleys; and also reserves the right to construct any other sewers in said streets and alleys which it may desire at any time during said period of ten years.

"Sec. 2. The city of St. Louis reserves the right to alter, amend or repeal this ordinance at any time. Approved March 14, 1885."

It further appeared from plaintiff's evidence that his said lot number 1 was a sink hole about fifteen or twenty feet deep; that he had owned it some thirteen years; that there were no improvements of any kind on the lot; that the alley in question had never been improved and is from ten to fifteen feet below grade.

No claim is made that any improper influences were brought to bear to induce the municipal assembly to vacate the alley.

The circuit court refused the injunction and plaintiff appeals.

The right of plaintiff, as an abutting owner to the alley in the rear of his lot was a property right. Of this there can be no doubt. Spencer v. Railroad, 120 Mo. 154, 23 S.W. 126; Heinrich v. St. Louis, 125 Mo. 424, 28 S.W. 626.

On the other hand the right of the city to vacate the alley is expressly conferred by charter. This power to vacate must be exercised subject to the constitutional provision that private property shall not be taken or damaged for public use without just compensation. That plaintiff has a clear legal remedy is without doubt. Heinrich v. St. Louis, 125 Mo. 424, 28 S.W. 626. Is he entitled to an injunction against the city?

It is not every infringement of private rights that calls for equitable interference. In Bailey v. Culver, 84 Mo 531, the conditions precedent to...