Glasgow v. City of St. Louis
| Citation | 15 Mo.App. 112 |
| Parties | WILLIAM GLASGOW ET AL., Respondents, v. CITY OF ST. LOUIS ET AL., Appellants. |
| Decision Date | 12 February 1884 |
| Court | Court of Appeal of Missouri (US) |
APPEAL from the St. Louis Circuit Court, LUBKE, J.
Affirmed.
TRUMAN A. POST, with whom is LEVERETT BELL, for the appellants: Under the charter and ordinances of the city of St. Louis, then in force, the relinquishment of Papin Street, by the Glasgows, in 1854, gave the city the same rights thereto as in case of ordinary streets, and among others the right to abolish the same.-- Kimball v. Kenosha, 4 Wis. 321; Gray v. Iowa Land Co., 26 Iowa, 387. When ordinance 12,457 was passed, the charter of St. Louis had been amended so as to give the city council power to vacate streets (Charter 1876, Art. III., sect. 26; subd. 26, Rev. Ord. 1881, p. 122); the city council had the right to declare the strip of Papin Street, between Twelfth and Thirteenth Streets, vacant for twenty years; and to receive for so doing the money and land provided for in the ordinance.-- Polack v. Orphan Asylum, 48 Cal. 490; Boston v. Richardson, 13 Allen, 153. See further, Bissell v. N. Y. Cent. R. Co., 23 N. Y. 64; Hammond v. McLachlan, 1 Sandf. 342; Stiles v. Curtis, 4 Day, 328, 334; Dill. Mun. Corp., p. 632, sect. 633 [[[[[[496]; 3 Kent's Comm., *433, 434, note Id; Perrin v. N. Y. Cent. R. Co., 36 N. Y. 124; Weissbrod v. Chic. & N. W. R. Co., 18 Wis. 44; Wyman v. Mayor, 11 Wend. 502; Pettingill v. Devin, 35 Iowa, 356; White v. Godfrey, 97 Mass. 472; Day v. Schroeder, 35 Iowa, 356.
M. L. GRAY, for the respondent: Rev. Stats. 1845, p. 1056, sect. 6, vested in the county, now the city, the title of the street in trust for the purposes and uses declared, and for no other uses whatever. This trust will be enforced by the courts.--2 Dill. Mun. Corp. (3d ed.), sect. 653, and cases cited in note 1; Rutherford v. Taylor, 38 Mo. 315, 318; Price v. Thompson, 48 Mo. 361, 364, 365; Town of Cameron v. Stephenson, 69 Mo. 378 (); Lackland v. N. Mo. R. Co., 31 Mo. 180, 185. Raborg's surveying Papin Street through the forty-three feet of his land, recording said survey and conveying the lots according thereto, and bounding them on Papin Street, was a valid dedication and clothed the county (afterwards city) with the trust to use it only as a public street.--2 Dill. Mun. Corp. (3d ed.), sect. 640, note 2. Rector v. Hart, 8 Mo. 457; Hannibal v. Draper, 15 Mo. 634, 640; Thurston v. St. Joseph, 51 Mo. 510, 512, 516, 517; Rose v. St. Charles, 49 Mo. 511. The city has no power to alien or dispose of streets held in trust for public use.--2 Dill. Mun. Corp. (3d ed.), sect. 650 and authorities in note 1, sects. 651, 575 and note 1, sect. 660; Warren v. Lyons, 22 Iowa, 351, 354; The Commonwealth v. Bowman, 3 Pa. St. 203; The State v. Atkinson, 24 Vt. 448; 18 Ohio St. 221; Trustees v. Perkins, 3 B. Mon. 440; Alves v. Tr. of Henderson, 16 B. Mon. 168; Trustees v. Hoboken, 33 N. J. L. 19; Alton v. Ill. Transp. Co., 12 Ill. 60; Ransom v. Boal, 29 Iowa, 68, 70; Matthews v. Alexandria, 68 Mo. 119.THOMPSON, J., delivered the opinion of the court.
This is a suit in equity for an injunction to restrain the defendants from stopping up a street in the city of St. Louis. At the hearing the circuit court decreed a perpetual injunction, and the defendants have appealed.
Under appropriate pleadings, the following facts appeared: The defendant, the Shickle, Harrison & Howard Iron Company, a manufacturing corporation, at and prior to the dates with which we are concerned, was the owner of all the land fronting on both sides of Papin Street, between Twelfth and Thirteenth Streets; that all of the block north, and half of the block south of this part of Papin Street, were occupied by the foundry works of this corporation; that, on an average, one hundred and twenty tons of iron were hauled per diem along that part of said street; that said company employed a force of men in its works averaging nearly five hundred, who, with their families, were supported by earnings from the company; that said portion of Papin Street was in almost continual use by the company's teams during the day; that Papin Street was broken off on the east by Twelfth Street for two blocks or so, when a street nearly in line with it, called Orchard, or perhaps Papin Street, ran east a block or two, and was again cut off as far east as Seventh Street, when it again commenced and ran east; that Gratiot Street and Chouteau Avenue, parallel with and adjoining Papin Street on the north and south, were continuous thoroughfares to the central portion of the city; that, in point of fact, Papin, between Twelfth and Thirteenth Streets, was scarcely travelled at all except by the employés and teams of the company, in consequence of the smoke, noise, and dust, and hauling of teams by the company's foundry; that the use of said strip of Papin Street by buildings and machinery of the company was becoming highly essential to it in its business, and if it could not be so appropriated the company might be compelled to remove its foundry across the river; and that horse cars were running to and fro along Chouteau Avenue and Fourteenth Street, one block from Papin and Thirteenth Streets respectively, and that Thirteenth Street was open to Chouteau Avenue.
Such was the state of facts when the city of St. Louis, in pursuance, as it seems, of an agreement made with the Shickle, Harrison & Howard Iron Company, passed the following ordinance:--
“An ordinance providing for the vacation of Papin Street, between Twelfth and Thirteenth Streets, on the dedication to the public of a triangular slip of ground in city block 440.
Be it ordained by the Municipal Assembly of the City of St. Louis, as follows:
SECTION 1. So much of Papin Street as lies between Twelfth and Thirteenth Streets is hereby declared to be vacated as a public street, and the use thereof for twenty years from the approval of this ordinance is given to the owners of the property abutting thereon, at the expiration of which time the property embraced in the street shall revert to the city as a public thoroughfare.
SECT. 2. This ordinance is not to take effect nor be in force unless a triangular slip of land in city block 441, having a front of twenty feet on Gratiot Street by a depth of one hundred and forty-four feet six inches on Twelfth Street, and bounded as follows: By Twelfth Street on the east, Gratiot Street on the north, and by a line drawn from a point on the south line of Gratiot Street twenty feet west from the intersection with Twelfth Street to a point on the west line of Twelfth Street one hundred and forty-four feet six inches south from its intersection with Gratiot Street, shall have been properly dedicated and surrendered to the city of St. Louis for public use.
SECT. 3. This ordinance shall not take effect unless within thirty days from its approval by the mayor, the Shickle, Harrison & Howard Iron Company shall file with the city register its bond to the city of St. Louis, in the penal sum of twenty thousand dollars, with two or more good and sufficient securities, to be approved by the mayor and council, conditioned that said Shickle, Harrison & Howard Iron Company shall save the city harmless from the payment of any costs, damages, judgments, outlay, or expenditures by reason of vacating said street as aforesaid, and at the same time pay into the city treasury the sum of two thousand dollars.”
The title of the city of St. Louis, to that portion of Papin Street which it thus attempts to dispose of for the term of twenty years came to it through certain dedications, as follows:--
1. A dedication made in the year 1854 by the ancestors of these plaintiffs, under the town plat act, which appears in the recorder's office, as follows:--
“The above represents a piece of ground belonging to the undersigned; so much of Chouteau Avenue, Papin Street, Gratiot Street, Thirteenth, and Fourteenth Streets, as here represented and comprised within the same are hereby relinquished to the public as highways forever; also alleys through blocks 441 and 442.
“Witness our hands and seals the 21st day of June, 1854.
“WM. CARR LANE.
2. A strip of ground forty-three feet wide, more or less, of what is now Papin Street, lying next west of Twelfth Street. This did not belong to the plaintiffs' ancestors at the time of the above relinquishment, and was not covered thereby. It was, however, embraced in a plat of Rayborg & Schaffner's addition, which was surveyed by Wm. H. Cozens and filed in the recorder's office in 1856. No relinquishment or dedication was indorsed upon this plat. But it appeared that in 1864 and 1865, partition proceedings took place between the Rayborg heirs, and that, in pursuance of those proceedings, deeds were made in 1865 and 1867, calling for fronts on Papin Street of this remaining strip of forty-three feet. There is, therefore, no question of the dedication to public use as a street of Papin Street for the entire distance between Twelfth and Thirteenth Streets.
In 1848, prior to these dedications, the city passed an ordinance numbered 1752, establishing one hundred and seventy-seven streets and parts of streets, the title and first and third sections of which are as follows:--
“An ordinance establishing the wharf, streets, alleys, and public places.
Be it ordained by the City Council of the City of St. Louis.
SECTION 1. The following wharf, streets, and parts of streets are hereby established. * * * Papin street from Fifth Street to Seventh Street fifty feet wide, at a distance of four hundred feet south and parallel to Gratiot Street; fifty feet wide from Eleventh Street westwardly to Tayon Avenue, at a distance of three hundred and fifteen feet six inches north of and parallel to Chouteau Avenue.
SECT. 3. Nothing in this ordinance shall be so construed as opening and...
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