City of St. Louis v. Breuer

• Decision Date: 04 June 1920
• Docket Number: No. 21117.,21117.
• Citation: 223 S.W. 108
• Parties: CITY OF ST. LOUIS v. BREUER et al.
• Court: Missouri Supreme Court

223 S.W. 108

CITY OF ST. LOUIS v. BREUER et al.

No. 21117.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Motion for Rehearing Denied June 25, 1920.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Proceeding by the City of St. Louis to establish a street, in which Louis Breuer and others appeared and filed a motion to dismiss. From a judgment of dismissal, the city appeals. Reversed and remanded.

Chas. H. Danes, H. A. Hamilton, and G. Wm. Sean, all of St. Louis, for appellant.

Campbell Allison, of St. Louis, for respondents.

WHITE, C.

The plaintiff filed its petition seeking to establish a street in the city of St. Louis and condemn property necessary for the purpose. The defendants, property owners affected, appeared and filed their motion to dismiss the proceeding on the ground that the court had no jurisdiction. The motion was sustained and the proceeding dismissed. From that judgment of dismissal the appeal is prosecuted by the plaintiff city.

A consideration of the issues presented in this case is made more difficult because the appellant in its brief here has discussed one case, while the respondents have discussed another. The grounds on which the respondents claim the trial court rightly dismissed the proceeding, and which they argue in their brief, are mainly `quite different from those which the appellant argues were insufficient to warrant a dismissal. We will endeavor to consider all the points which appear to arise in connection with the action of the court.

I. The ordinance set out in the petition whereby the city sought to establish Wherry avenue, Ordinance No. 28692, is attacked for several reasons by the respondents as being insufficient to give the court jurisdiction of the case. The ordinance is as follows:

"Ordinance No. 28692.

"An ordinance to establish and open Wherry

avenue (partly a private street) from Nottingham avenue to Loughborough avenue. "Be it ordained by the city of St. Louis, as follows:

"Section 1. Wherry avenue (partly a private street) from Nottingham avenue to Loughborough avenue is hereby established as a public highway sixty feet wide, the center line thereof to be the straight linear prolongation southwestwardly from Nottingham avenue to Loughborough avenue of the center line of Wherry avenue sixty feet wide, as heretofore laid out and running northeastwardly from Nottingham. avenue to Sutherland avenue.

"In addition to the herein established highway there is also established as a public highway a triangular piece of land which is embraced within the following described boundaries, respectively carried to junction, to wit:

"Bounded on the south by the prolongation westwardly of the south line of Itaska street as laid out west of Macklind avenue bounded on the east by the prologation southwardly of the east line of January avenue as laid out north of Nottingham avenue and bounded on the northwest by the southeastern line of the herein established Wherry avenue sixty feet wide.

"Sec. 2. The city counselor is hereby authorized and instructed to cause said Wherry avenue to be opened according to law.

"Approved April 12th, 1916."

In the first place, it is claimed by respondents that the designation of a "public highway" as the thing to be established is too indefinite; it does not distinguish. The expression "public highway" is a generic term; it may mean either a street or a boulevard, and from the language of the ordinance it cannot be determined which of these is sought to be established.

It was held by this court in the recent case of St Louis v. Realty Co., 259 MO. 126, 168 S. W. 721, that an ordinance providing for the establishment of a boulevard would not authorize the assessment of benefits against the property which was not liable for such assessment except in the establishment of a street. It seems, under the charter as it existed at the time that proceeding was begun, property against which benefits might be assessed for opening a boulevard was limited to that which bordered upon the proposed boulevard, while, in the assessment of property benefited by the opening of a street, benefit districts could be laid out including property not abutting upon the street. The appellants in the Realty Co. Case were assessed benefits upon the property which did not abut upon the proposed boulevard. It was held that, inasmuch as the proceeding was to establish a boulevard and not a street, the court had no jurisdiction to assess such benefits.

The appellant argues here that the original distinction between "boulevard" and "street" in that respect has been removed. Yet the distinction between a boulevard and a street exists, not only in the application of it to modern thoroughfares, but it is recognized in the present charter.

A "boulevard," from its ancient signification as a passageway upon a rampart, or a drive upon the ruins of a fortification, has passed into current use as meaning something different from a street. St. Louis v. Handlan, 242 Mo. 88, loc. cit. 95, 96, 145 S. W. 421. The distinction is recognized by the charter of the city of St. Louis, art. 21, § 11, where boulevards are classed with parkways, and provision is made for "converting streets into boulevards," indicating that such conversion necessarily would involve a change in the character of the highway.

The charter, so far as we have been able to find, does not mention avenues, streets and boulevards are mentioned and provided for, but not avenues. No ordinance is in the record defining what is meant by an "avenue," while the charter determines in effect what is meant by a "street," and what is meant by a "boulevard." We are left to the ordinary use and definition of words as to what is meant by an "avenue." Being used in this particular ordinance, we must inquire whether it means street or boulevard. The word "avenue" does not have a general meaning applying to both street and boulevard, but would have to be identified with one or the other.

There need be no difficulty here in confusing the highway, characterized as Wherry avenue, with a boulevard, because "avenue" is not synonymous with "boulevard" but is synonymous with "street." One dictionary definition of "avenue" is a "wide street." There is no definition of avenue which makes it synonymous with boulevard. This conclusion is re-enforced by the title and the first line of section 1, which designates the highway as "Wherry avenue (partly a private street)." That is to say, it is a street, part of which is used for private purposes.

It is...