Clemens v. Connecticut Mut. Life Ins. Co.

• Decision Date: 16 July 1904
• Citation: 82 S.W. 1,184 Mo. 46
• Parties: CLEMENS v. CONNECTICUT MUT. LIFE INS. CO. et al.
• Court: Missouri Supreme Court

82 S.W. 1

184 Mo. 46

CLEMENS v. CONNECTICUT MUT. LIFE INS. CO. et al.

Supreme Court of Missouri, Division No. 2.

July 16, 1904.

EMINENT DOMAIN—STREET IMPROVEMENTS — CONSEQUENTIAL DAMAGE—INJUNCTION— CONSTITUTIONAL LAW.

1. Under Const. art. 2, § 21, providing that property shall not be taken or damaged for public use without just compensation, a property owner is not entitled to an injunction, in a case commenced prior to the taking effect of Act June 2, 1899, p. 61, which went into effect in August, 1899, to prevent the improvement of a street until mere consequential damages to his property are ascertained and paid; the improvement being done in pursuance of a valid city ordinance.

Appeal from St. Louis Circuit Court; P. R. Flitcraft, Judge.

Suit by Frederick W. Clemens against the Connecticut Mutual Life Insurance Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

McKeighan & Watts and Barclay & Fauntleroy, for appellant. Rassieur & Buder, for respondents.

GANTT, P. J.

This is an appeal from a decree of the circuit court of the city of St. Louis perpetually enjoining the defendants from changing the grade of Arkansas avenue, in said city, between the north line of Cherokee street and the south line of McKean avenue, and from changing the grade of the alley running from the Gravois road or avenue to Arkansas avenue, through city block 1492 of the city of St. Louis. The suit was commenced June 20, 1899, and a preliminary injunction was granted June 26, 1899.

The petition states that the plaintiff is the owner of lots 8, 9, and 10 in block 1492, having an aggregate front of 116 feet and 1 inch on the north line of Cherokee street, by a depth northwardly of 127 feet 8¾ inches, in a line parallel with the east line of Arkansas avenue, to an alley 15 feet wide, and that the Connecticut Mutual Life Insurance Company is the owner of lot No. 7 in said block, a strip of ground 70 feet wide on the north line of Cherokee street, and running northwardly of that width 127 feet 8¾ inches to the said alley, and the said defendant also is the owner of the remainder of said block 1492, which said block bounds on the east line of Arkansas avenue between Cherokee street and McKean avenue, and also owns block 1494, which bounds on the west line of Arkansas avenue, between said two streets; that the city of St. Louis established a grade for the said Cherokee street and Arkansas avenue at their intersection, and at the places where they enjoin the said city blocks, and, with the knowledge of said grade, the plaintiff purchased and improved his said property, adjusting his buildings to said grade; that the defendant and its agent, without legal authority, and against the protest of plaintiff, are now engaged in making and constructing the said Arkansas avenue between said Cherokee street and McKean avenue, and, in so doing, are changing the grade of said Arkansas avenue from Cherokee street to McKean avenue, and of the said Cherokee street at the point of its intersection with Arkansas avenue, by raising the same 2.6 feet, "and by raising the same at said alley at the point of its intersection with said Arkansas avenue four and 20/100 feet, thereby interfering with the free ingress and egress to and from plaintiff's said property over and along said alley from and into said Arkansas avenue; that, by so making said grade as they are about to do, the property of plaintiff will be placed in a depression below the grade of neighboring streets, and subject to overflows to the irreparable damage of plaintiff."

The answer is as follows:

"(1) The defendants, by their counsel, for answer to the plaintiff's petition herein, admit the defendants are corporations as alleged. Whether or not plaintiff is the owner of the tracts of land, or any of them, mentioned in said petition, said defendants have no knowledge or information sufficient to form a belief, and therefore require proof. Whether plaintiff purchased, improved, or maintained his said property with knowledge of the grade of the adjacent streets, these defendants have no knowledge or information sufficient to form a belief, and therefore require strict proof. Defendants admit that the city of St. Louis by ordinance established a grade for the said Cherokee street and Arkansas avenue. Defendants deny that they are changing the grade of Arkansas avenue from Cherokee street to McKean avenue, or of Cherokee street at its intersection with said Arkansas avenue. Defendants deny that they are raising the grade at either of said streets, or portions of said streets, 2.6 feet. Defendants deny that they are changing the grade of any of said streets, or portions of said streets. Defendants further deny that they are now engaged in making or constructing any portion of said streets without legal authority.

"(2) Defendants, for further answer, admit that they have been making certain improvements in and upon the streets aforesaid, but defendants aver that the same are strictly in accordance with the grade as fixed by the city of St. Louis at the places where said improvements are being made by defendants. Defendants further deny generally all the allegations of the petition not otherwise referred to in this answer. Having fully answered, defendants ask to be hence discharged with their costs."

No reply was filed.

At the April term, 1900, a final decree of injunction perpetually enjoining defendants was entered.

The facts developed on the trial are the following: Plaintiff is the owner of lots 8, 9, and 10 in block 1492, and defendant owns lot No. 7 and the remainder of said block. City block 1492 is bounded on the south by Cherokee street, on the east by Gravois road or avenue, on the north by McKean avenue, and on the west by Arkansas avenue. At the time plaintiff purchased his said lots there was in force an ordinance (No. 12,525, approved November 7, 1883) establishing the grade of Arkansas avenue at the intersection thereof with Cherokee street and with McKean avenue. On November 26, 1897, another ordinance (No. 19,206) was enacted, establishing the grades of streets and avenues in the district bounded south of Cherokee street and by Utah street, running west of Grand avenue, north by Arsenal street, east by Louisiana avenue and Gravois avenue, and west by Spring avenue, and repealing parts of Ordinances 12,525, 15,432, 16,178, 17,274, and 17,732. The defendant, through its agents, the Pitzman Surveying Company, was proceeding to curb and gutter its property, and construct the superstructure of Arkansas avenue adjacent to its property in said street, under a permit from the city authorities, when this injunction was granted, perpetually enjoining it from doing said work in conformity to Ordinance 19,206. The city of St. Louis was not made, and is not, a party to said suit. The liability of the city for damages resulting to adjoining property owners who have built their improvements in conformity to the first grade established by the city by a change of such grade is only incidentally and collaterally involved in this case, and the city has not been made a party defendant, and no damages are asked against the city. It appeared that plaintiff purchased his lots 8, 9, and 10 in block 1492 in 1890 and 1893, and had constructed thereon a brick stable and feed store and sheds and carriage houses and a residence, and laid granatoid pavements abutting on Cherokee street in front of lots 8, 9, and 10, fronting on said street. Plaintiff's said property nowhere touches Arkansas avenue. By the changes of grade from that established by Ordinance 12,525 in 1883 to that fixed by Ordinance 19,206 in 1897, Arkansas avenue, at the intersection of Cherokee street, will be raised 2.6 feet, and at the mouth of the alley between Arkansas avenue and Gravois avenue, in block 1492, on Arkansas avenue, the grade will be raised 4.2 feet, and, at the point on Arkansas avenue where the same intersects with McKean avenue, the grade will be raised 5.8 feet; and plaintiff's evidence tended to prove that when said grade was thus changed the southwestern corner of plaintiff's lot 8 would be 1 foot and 4 inches below said new grade. It will thus be seen that plaintiff's property does not abut on Arkansas avenue, the street affected directly by the change of grade, but plaintiff's right to recover in this suit is based on the claim that, notwithstanding his property does not abut on Arkansas avenue, his property and certain rights and easements connected therewith will be affected to his injury by the said contemplated changes of grade by Ordinance 19,206 of November 26, 1897, and his ingress and egress to and from his said property over and along the alley in block 1492 to Arkansas avenue would be interfered with. It was admitted the city had taken no steps to have such supposed damages to plaintiff's property assessed. According to the evidence of Mr. Varrelman, the street commissioner of the city, and witnesses for plaintiff, the grade of the alley itself had never been established, and no profile of it had ever been made. The plaintiff's evidence showed that the mouth of the alley necessarily conformed to the street into which it opened, but no work had ever been done in the alley itself, and no stakes driven in it, and, save as to the point of intersection of the alley with Arkansas avenue, there was not even a paper grade defined by the city authorities. While there is a large volume of evidence, there is practically little conflict.

By section 26 of article 3 of the scheme and charter of St. Louis (paragraph 2), the municipal assembly of the city of St. Louis has the power to grade and change the grade of streets, avenues, and alleys in said city, when deemed best for the public good, subject to the liability of the city for damages resulting to abutting property owners from the exercise of such power. Prior to the amendment of the Constitution in 1875, the city, in the ...