Cummings v. City of St. Louis

• Decision Date: 06 December 1886
• Citation: 90 Mo. 259
• Parties: CUMMINGS v. CITY OF ST. LOUIS and others.
• Court: Missouri Supreme Court

90 Mo. 259

CUMMINGS

v.CITY OF ST. LOUIS and others.

Supreme Court of Missouri.

December 6, 1886.

Appeal from St. Louis court of appeals.

Suit to enjoin the city of St. Louis and its officers from carrying into execution an ordinance for the sale of Exchange square. Judgment for plaintiff. Defendants appealed. The facts are stated in the opinion.

M. McKeag, for respondent, Cummings. L. Bell, for appellants, City of St. Louis and others.

BLACK, J.

In 1816, Chambers, Christy, and Wright, being the owners of a tract of land, laid the same off as an addition to St. Louis. The plat, which was then recorded, besides showing the lots, blocks, streets, and other public grounds, has written thereon the following words: “The land marked 'A,”' which is then described, “is to be and remain a common forever.” The parcel of property thus devoted to a common is known in the record as “Exchange Square,” and, as shown on the plat, has a length of 1,300 feet along the river, and a width of 120 to 125 feet. It lies between Front (now Main) street and the river. Front street runs north and south. All of the streets running east and west through the addition go to the river for their eastern terminus. Three of these streets go through the common, dividing it into four fractional blocks for the purpose of a common. Part of Exchange square is now used as a public park, and a part is occupied by lessees of the city--by a railroad company--by license from the city. At this time, the square, by reason of accretion, has a width of from 628 to 638 feet, and there is an improved wharf between it and the river. A street parallel to the river has been projected through the north half of the square.

In 1878 the heirs of the proprietors of the addition brought suit against the city, in which they allege that the city has so managed the property as to nullify and render impossible the expressed intentions of the donors, and they pray the court to divest the city of all title to the property, and invest the full title in them. Pending that suit the municipal assembly passed an ordinance authorizing the mayor and other officers to consent to a decree by which the square, and that portion of two of the streets where they pass over the common, shall be sold, and the proceeds divided, one-half to the city, and the other half to the plaintiffs in that suit. The plaintiff prosecutes this suit to enjoin the city and its officers from carrying into execution that ordinance. He owns property in the third block west of the square, with buildings thereon, and in which he carries on the St. Louis Glass-works. This factory property covers the entire front of that block on Monroe (now Washington) street. It is a portion of this street which the city proposes to sell under the contemplated decree, so that the plaintiff, in going to the wharf for sand, as he does, to be used at the factory, will be obliged, at Front street, to go one block north or south, and thence to the wharf. He also owns and resides upon other property in the same addition still further from the common. He acquired the residence and factory property by mesne conveyances from the proprietors, all made after the plat had been recorded.

1. That the proprietors dedicated this parcel of property to public use for a common, by the use of the words before quoted, cannot be doubted. For all other purposes, however, they remained the owners. They use the word “common,” not in any technical sense, but in its popular signification, as a parcel of ground set apart for common and public use, for the convenience and accommodation of the inhabitants of the city. The city may control and regulate that use, but it has no right to sell the property, and devote it to private use, and thereby destroy the trust created for the benefit of the public. We have held that the city of St. Louis could not lease unconditionally for a term of years, for the prosecution of private business, property acquired by condemnation for a wharf. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 122. The same is true with respect to these streets and the common in question. It must follow that the proposed out and out sale is a flagrant abuse of the trust reposed in the city, and without any warrant or authority of law.

2. The second section of the act of February 20, 1845, (Laws 1845, p. 438,) declares that when a piece or parcel of land, held for public use, shall not be needed for public use, the land may be sold by the city; but that section must have reference to such property as is held by the city in full use and ownership,--as the commons acquired by confirmation under the various acts of congress,--and it can have no application to the property in question. The legislature of the state could not authorize any other use of the property in question than that specified in the act of dedication. It has no power to extend or enlarge the uses, much less the power to authorize an out and out sale of the property.

3. The more difficult question is as to the right of the plaintiff to maintain this suit. Judge Bliss, in his treatise on Code Pleading, (section 81,) states the rule...