Gamble v. City of St. Louis

• Decision Date: 31 October 1849
• Citation: 12 Mo. 617
• Parties: ARCHIBALD GAMBLE v. THE CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

12 Mo. 617

ARCHIBALD GAMBLE

v.THE CITY OF ST. LOUIS.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GAMBLE, for Appellant.

1. The alley was private property, and the city can only pave alleys, streets, &c., which are public, already dedicated to public use, and the attempt to coerce the appellant to pay for the paving his own land, by selling his other land, is an injury which a court of equity should restrain. 2. The city clearly had no power to pave the alley unless it was public. See City Charter, Laws 1839, p. 164; Laws 1841, p. 137; Laws 1843, p. 123. 3. The alley was not dedicated to public use as a public alley. The only dedication pretended is by the proprietor's suffering the land to remain uninclosed. This cannot amount to a dedication without the assent of the proprietor to its use by the public as a public alley. It is his assent to its use as such joined with the actual use which creates the dedication. Cincinnati v. White, 6 Peters, 431--particularly 440; Barclay v. Howell, 6 Peters, 498. 4. And such assent will not be presumed from the use without concurring circumstances, as length of time, &c., for if all lands uninclosed, and over which other persons may pass with the knowledge of the proprietor, and unrestrained by him, be presumed dedicated to public use, then nine-tenths of the land in Missouri is so dedicated, which cannot be the fact. The section of the charter (7th section of 6th art.) which gives to the mayor and city council power to tax lot-holders according to the respective points owned by them, is unconstitutional. Constitution, art. 13, § 19.

BLENNERHASSETT, for Appellee.

1. The facts disclosed by complainant's bill show that the alley in question was dedicated by the owner thereof, the complainant, to public use. 'Tis true that the complainant did not convey the premises through which said alley runs, by deed, to the city; but this is not necessary. A dedication can be effected by parol as well as by deed; nor is there any particular form necessary. If the owner in fee sets apart the premises for a street or alley, though it be for his own convenience, and permits it to be used by the public indiscriminately, the law will presume a dedication, and to rebut this presumption, he must show affirmatively that he prohibited its use as a street or highway. The City of Cincinnati v. White's Lessees, 6 Peters, 431, and the cases there cited. 2. If this alley was dedicated to the city for the public use as claimed, the corporation possessed ample power by the charter of 1839 to pass such ordinances as were necessary to place it in such a condition as would prevent any detrimental consequences to the general health of the citizens; in other words, the city had power to remove the nuisance, which by the reports of the city engineer, as set out in the answer, existed there, at the expense of the owners. Art. 3, § 1, clauses 6 and 8; art. 6, § 7 of the Charter of 1839, and same clauses and sections of art. 3, and same section of art. 6, of the amended Charter of 1841. 3. If the foregoing position should be regarded as untenable, and that the city acquired no title whatever and that the alley and the ground on which it was laid out was, and remained the property of the owner, then it is contended that these facts appearing on the face of the proceedings, the complainant is not entitled to relief in this court, he having a complete and perfect remedy at law; he could set up the same facts on which he now claims relief, as a defense against an action which the purchaser at the tax sale may bring to recover possession of the property sold, or he may pay the tax assessed, and recover it back in an action at law against the city, regarding it as a compulsory payment. Van Doren and others v. Mayor, &c., of New York, 9 Paige, 388; West and others v. Mayor, &c., of New York, 10 Paige, 539; 17 Miss. R. 461; 12 Pick. 206; 4 Pick. 361; 6 Conn. R. 223; 12 Pick. 10 Conn. R. 127. 4. It is claimed by the complainant that the proceedings upon the assessment are void; if so, a purchaser at a sale, under such assessment, could not obtain a prima facie title to lands sold for the payment of the assessment, and these facts appearing in the bill, a court of chancery has no jurisdiction to interfere and set aside the assessment, nor is there in law such a cloud upon the complainant's title as to authorize him to apply to a court of chancery. 5. The complainant seeks to restrain the collection of a mere pecuniary demand, unaccompanied by any acts on the part of the defendant which would make such collection unconscionable; it is not claimed or pretended that the defendant is about doing any act to the property of the plaintiff which would work an irreparable injury or mischief. If the city of St. Louis cannot collect the amount assessed, it must follow that it had no power or authority to abate the alleged nuisance by the improvement of the alley, and that by said improvement the city was exercising an unwarrantable authority over the complainant's property. Taking this view of the case, it is insisted that the complainant should have invoked the equitable power of this court to prohibit the making such improvements. Having omitted to do that, it is now too late to ask this court to restrain the collection of the sum assessed.

NAPTON, J.

This was an application for an injunction. The complainant alleges, that he is the owner of two lots in block No. 86 of the city of St. Louis, one fronting on Pine street, about one hundred feet, and another lot of 64 by 101 feet, near the middle of the block, and that for his own convenience he appropriated about 15 feet taken from each lot for a private alley; that at the time he made this appropriation the remainder of the block was vacant, so that wagons, drays, & c., could pass and repass from Pine to Chestnut street; that when the owners of the other lots made their improvements, they conformed to the lines of the private alley; so that it remained open for the public from Pine to Chestnut street. The complainant further states, that the city corporation caused the said alley to be paved, and after thus taking his private property for public use, presented him a bill of $117 06 as the proportion assessed on him, and demanded payment, which being refused, the city was proceeding to sell his lots for the payment of these taxes, by which a cloud would be brought upon his title, &c.

The answer of the city admitted the ownership of the lots in complainant, the grading and paving of the alleys, and the attempt to force payment of his assessed taxes, but asserted that the charter and ordinances of the city authorized the proceeding. The answer admits that complainant had laid out the alley for his own convenience, and that the other proprietors may have been influenced by similar motives in conforming their buildings to the lines of the alley; but insists that the alley was thus open in 1839, and continued so with the full knowledge and consent of complainant. That in September, 1839, Rene Paul, city surveyor, reported to the board of aldermen that said alley had been surveyed by him as city surveyor, by authority of the proprietors, and that the acquiescence of the complainant and the other proprietors in the use by the public, and the survey without objection, constituted a dedication of this alley to public uses; and further, that whether it was a public or private alley, the charter gave the city authorities power to grade and pave it at the expense of the proprietors of the adjacent lots. The answer relied upon the charter and various ordinances of the city council as fully authorizing what their officers had done in the premises.

To this answer there was a replication, and the cause coming on to be heard upon the pleadings and the proof, the injunction was dissolved. The questions chiefly discussed in this case, are presented by the record in such an unsatisfactory shape as scarcely to warrant us in expressing a definite opinion upon them....