Ferrenbach v. Turner

• Decision Date: 30 April 1885
• Citation: 86 Mo. 416
• Parties: FERRENBACH et al., Appellants, v. TURNER et al.
• Court: Missouri Supreme Court

86 Mo. 416

FERRENBACH et al., Appellants,

v.TURNER et al.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis City Circuit Court.--HON. DANIEL DILLON, Judge.

AFFIRMED.

F. T. Ledergerber and Louis Gottschalk for appellants.

(1) Taxpayers have the right to bring this action and sue out an injunction. Mathis v. Inhabitants, 62 Mo. 504; Newmeier v. M. & M. R. R., 52 Mo. 81; Roach v. St. Louis Public Schools, 77 Mo. 485. (2) The city of St. Louis has no right to close up wells, without due process of law. Const. of Mo., secs. 21, 22, 30, art. 2. There is a special property and franchise in wells, protected by the constitution. The adjoining property owners own to the middle of the street subject to the casement. Everett v. City, 46 Iowa, 67; Clark v. Darro, 34 Mich. 86; River Rendering Co. v. Behr, 77 Mo. 91; Lowry v. Rainwater, 70 Mo. 152. (3) And the city cannot fill up wells, at its own expense, or at the expense of the general taxpayers, but must, in the first instance, order the owners to fill them up, and only in case of their neglect so to do, can the city do it, and for the costs issue a special tax bill. Charter of City, 2 R. S. Mo., p. 1587, art. 3, clause 9; art. 6, p. 1608, secs. 2, 3, 8, 12, 14, 19; art. 12, p. 1619, secs. 3, 6, 7, 8. And this applies even to nuisances. Art. 12.

Leverett Bell for respondents.

(1) The powers granted the city in its charter (2 R. S., p. 1585, art. 3, sec. 26), are amply sufficient to support section two of ordinance 13,272, in question. (2) The licenses to have the wells in the street, claimed by appellants, if granted, were revocable by the city at will, and without notice, and ordinance 13,272 is a revocation. Desloge v. Pearce, 38 Mo. 599; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746. (3) No property right can exist in a well in a public street. (4) Injunction is not the proper remedy in a case of this character. The alleged damages are illusive. Measures intended to promote the public health, and which are, in their nature, governmental, and within the police power of the state, ought not to be restrained by injunction.

BLACK, J.

This was a suit to enjoin the defendants from filling up wells in the streets of St. Louis. A temporary injunction was denied, and the petition dismissed.

The plaintiffs are resident taxpayers, and commenced the suit for themselves, and all other persons similarly situated. They allege that some of the plaintiffs, and many other persons, owners of different parcels of real estate, with the consent of the city, express or implied, dug wells on their respective parcels of property, and in the sidewalks, and furnished the same with pumps, etc. That some of the wells have been in use for twenty-five years, are permanent structures, maintained at great expense by the owners, and furnish healthy and wholesome water. That the city of St. Louis passed an ordinance, the second section of which is as follows:

“Section 2. All wells, located in any of the streets, avenues, or alleys of this city, in which the public water pipe is laid, and which shall be found by the board of health to contain six, or more, grains of chlorine to a gallon of water, are hereby abolished, and the street commissioner is hereby directed to cause the same to be filled up within ninety days after the passage of this ordinance, and the cost of such work shall be paid out of the city treasury;” and that the defendants are about to, and are, in fact, filling up the wells in pursuance of that ordinance.

It is claimed that each of the owners had a property right in his well, which cannot be taken away, destroyed or interfered with, until just compensation is made therefor, and for this reason the ordinance is void, and that the city has no right to appropriate the public funds for the purpose of filling them up. Much has been said with respect to the nature of the ownership of the property occupied by the streets. The allegations of the petition in this regard are general only. Whether the streets were acquired by a statutory plat, by condemnation, or by common law dedication, one or all, we are not informed. It has been held, in this state, that a lot owner has a property right in the street. Lackland v. North Mo. Ry. Co., 31 Mo. 180; Hannibal Bridge Co. v. Schaubacher et al., 57 Mo. 584. And this, too, though the dedication was by the way of a statutory plat. Rutherford v. Taylor et al, 38 Mo. 315; Price v. Thompson et al., 48 Mo. 361; Thurston v. City of St. Joseph, 51 Mo. 512. This case, though overruled in other respects, has not been in that under consideration. We do not regard it at all essential to enter into a more minute consideration of the character and extent of such rights in this case. It would be difficult so to do on the general statements of the petition. However the streets may have been acquired, the property cannot be again resumed by those making the dedication. There is no claim here that there was any express reservation, and certainly there can be none in the abutting property owners, inconsistent with the public use to which the property was appropriated.

If these wells were being filled up to accommodate the public travel on the streets there could be no question of the right of the city so to do. Indeed, the city cannot permanently contract away the streets and wharves for private purposes. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121. But this section of the ordinance, by itself, or in connection with the other sections, shows plainly that the wells are not being filled because they obstruct the streets, but as a...