City of Sturgeon v. Wabash Ry. Co.
| Citation | 17 S.W.2d 616 |
| Decision Date | 11 February 1929 |
| Docket Number | No. 16457.,16457. |
| Court | Court of Appeal of Missouri (US) |
| Parties | CITY OF STURGEON, RESPONDENT, v. THE WABASH RAILWAY COMPANY AND THE WILLIAM POLLOCK MILLING & ELEVATOR COMPANY, APPELLANTS. |
Appeal from the Circuit Court of Boone County. — Hon. D.H. Harris, Judge.
AFFIRMED.
Don C. Carter for respondent.
Fry & Hollingsworth for appellant, Mill & Elevator Company.
This is an appeal by the William Pollock Milling & Elevator Company from a decree rendered in a suit brought by the city of Sturgeon, a city of the fourth class, in Boone county, Missouri, requiring appellant to abate a nuisance by removing certain sheds and buildings used by it in carrying on its coal business, said buildings being located on the right-of-way of the Wabash Railway Company in said city.
The railroad's right-of-way runs east and west, crossing Ogden street at a point near the heart of the city, and dividing most of the business section from a large part of the residence section. It appears that Ogden street is the main thoroughfare of the city, and is the highway over which a large part of the traffic from the country on the south comes into town.
The main track of the railroad runs along the northerly part of the right-of-way. South of and parallel with it and crossing Ogden street is a switch track. South of and parallel with this, also crossing Ogden street, is another switch track, referred to in the evidence as the "house track." These two switch tracks merge with each other and with the main track some distance east of the crossing. On the east side of Ogden street and within three or four feet of the house track, but still within the right-of-way, stands the first of the buildings in question, being a frame structure, alleged in the petition to be about eighteen feet by twenty feet, and about fifteen feet high, its long dimension being parallel with the track. End to end with this building, and perhaps two or three feet east from it, and also parallel with the house track, is the second of the buildings in question, alleged in the petition to be about twenty-four feet by thirty feet, and about twenty feet high. Forty-three feet east of this easterly building stands a filling station, the approach to which is had along a street parallel with these two buildings, on the opposite side of them from the railroad track. The ground upon which the buildings stands is leased by the appellant from the railway company under a lease which was introduced in evidence, of which the only part printed in the record provides: "Party of the second part is not to create or permit to be created or to exist upon said leased premises any nuisance, public or private, during the continuance of this lease, and to save and keep harmless party of the first part from any suit or claim growing out of any such nuisance thereon."
The evidence shows that for several years past appellant has been using these buildings for the storage of coal to be sold at retail, the coal being unloaded into them directly from the cars, which for this purpose are "spotted" alongside the buildings on the house track.
There are numerous allegations in the petition as to the unsightliness, lack of repair and fire hazard of the buildings, but as the court did not base its finding upon these allegations they need not be considered further. The petition also alleged that the buildings were a source of danger to pedestrians and persons in vehicles using said Ogden street crossing, for the reason that trains approaching from the east could not be seen by such persons until they had reached the south switch track of the railroad, and that in fact a death had been occasioned thereby.
On September 3, 1925, the city passed an ordinance reciting that said buildings "are hereby declared to be a public nuisance within the opinion of the board of aldermen, and are hereby ordered to be torn down or removed from their present location to such location within the city as will not create or constitute a public nuisance." The ordinance further declared that a failure to tear down or remove the buildings would subject the owners to a fine of $10 per day; and further provided that a copy of the ordinance be served upon the owners of the buildings and upon the railway company. The petition recited this ordinance and its violation by defendants, and prayed judgment for the accrued penalty thereunder; and further prayed "that said defendants be ordered and required to remove or tear down said buildings immediately, as constituting a nuisance on the day and date of the passage of said ordinance."
The defendant railway company secured the removal of the cause, as to it, to the Federal court. The defendant William Pollock Milling & Elevator Company, appellant herein, filed its demurrer to the petition, on the ground that it did not state a cause of action. Upon the overruling of said demurrer appellant filed its answer, alleging first, a general denial; second, that the ordinance was null and void under the laws of the State of Missouri, and third, that the ordinance was contrary to section 30 of article 2 of the Constitution of Missouri, and to section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it attempted to deprive defendant of its property without due process of law.
At the trial of the case on November 22, 1927, the plaintiff dismissed all its claims for the penalty, and the only issue tried was as to the abatement of the alleged nuisance. The court found in favor of plaintiff and rendered its decree, reciting the facts as to the location and use of the buildings in the city, and in substance, that a large number of railway trains crossed said street each day without stopping or checking speed, some of them at a speed of from fifty to sixty miles per hour; that by reason of the proximity of said buildings to the tracks the view of approaching trains from the east was almost entirely shut off from persons approaching from the south, to such an extent as to be highly dangerous to life and property, and detrimental to the welfare of the inhabitants of the city; that the buildings were a public nuisance in fact and in contemplation of law, and were such public nuisances at the date of the passage of the ordinance referred to; that the standing of cars of coal on said railway track for the purpose of being unloaded into said buildings, for several days at a time, also tended to further obstruct the view of the approaching trains, and added to and aggravated the nuisance aforesaid; that the electric bell and signalling device maintained by the railway company at said crossing was inadequate and insufficient; that the defendant Milling & Elevator Company had been notified and requested by the city and its officers to remove said buildings, but had refused to do so, and that the city had duly passed the ordinance in question, and that same had been duly served upon the defendant; and that said sheds and buildings could with the consent of the railway company be removed at little expense to a more suitable location on the right-of-way, where they would not be an obstruction to the street and crossing. The decree then ordered the defendant, the William Pollock Milling & Elevator Company, "to remove said sheds and buildings from their present location on the right-of-way of said Wabash Railway Company on or before the first day of May, 1928, and on or before said date to remove and abate the public nuisance aforesaid." From this judgment and decree the William Pollock Milling & Elevator Company appealed to this court.
The city has no power to declare that to be a nuisance which is not so at common law or by statute. [Allison v. City of Richmond, 51 Mo. App. 133; Carpenter v. Reliance Realty Company, 103 Mo. App. 480, 77 S.W. 1004; St. Louis v. Heitzenberg Packing Co., 141 Mo. 375, 42 S.W. 954; Crossman v. Galveston (Tex.), 247 S.W. 810, 26 A.L.R. 1210.] Even where the general power exists to declare a nuisance, a city cannot declare the place of a single individual to be a nuisance in the absence of a general regulation applicable to all others of the same class. [19 R.C.L., section 117.] Neither can a city by virtue of the police power alone, for purely aesthetic purposes, limit the use which a person may make of his property. [19 R.C.L., section 140.]
However, cities of the fourth class in Missouri, while not authorized to declare nuisances which are not so in fact, are nevertheless expressly authorized to abate nuisances when shown to exist. Section 8474, Revised Statutes 1919, provides that they may "make regulations ... to prevent and remove nuisances." Section 8477 provides that they may "pass ordinances for the prevention of nuisances and their abatement." These clauses appear under the sections respecting quarantine, health regulations and sanitary conditions, and if for that reason they are not broad enough to cover all public nuisances they are supplemented by section 8694, applicable to all cities organized under the general statutes, which provides that such cities ...
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