Glasgow v. City of St. Louis

• Decision Date: 31 October 1885
• Citation: 87 Mo. 678
• Parties: GLASGOW et al. v. THE CITY OF ST. LOUIS et al., Appellants.
• Court: Missouri Supreme Court

87 Mo. 678

GLASGOW et al.

v.THE CITY OF ST. LOUIS et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Truman A. Post and Leverett Bell for appellants.

(1) The relinquishment of Papin street by the Glasgows in 1854 gave the city the same control over it as in case of ordinary streets. (2) When city ordinance 1,752 was passed, and the Glasgows relinquished their land for street purposes, the city of St. Louis had full charter power to “open and alter, abolish, widen, extend and establish” streets, lanes and alleys, and therefore power to abolish Papin street. (3) When ordinance 12,457 was passed, the charter of St. Louis gave the city council power to vacate streets, and therefore that body had the right to declare the strip of Papin street between Twelfth and Thirteenth streets vacant for twenty years. (4) Plaintiffs have no ground for injunction. The fact that plaintiffs are interrupted in their right of way through Papin to Twelfth street gives them no such right, since ( a) Aside from ordinance 12,457, Papin street, between Twelfth and Thirteenth, cannot be a thoroughfare, and is, in point of fact, practically of no use to and deserted by the public. ( b) Were the fact otherwise, any more circuity of route, inconvenience of access, or even depreciation in value of property caused by closing up this scrap of street, would not authorize injunction. (5) The evidence shows positively that the injury to plaintiffs is a diminution in the rental or salable value of their lands, by the closing of Papin street between Twelfth and Thirteenth. (6) Injuries so caused are in kind suffered in common by the public, and although more in degree by the adjacent owners, the action, if any, should be brought by the public prosecutor, and injunction therefor will not be granted on the application of a private citizen. Zabriske v. Railroad, 13 N. J. Eq. 318; 2 Stor. Eq., sec. 925; Attorney General v. Nichol, 16 Vesey, Jr. 342; Kellinger v. Railroad, 50 N. Y. 206; Hinchman v. Ry. Co., 17 N. J. Eq. 78; Allen v. Freeholders, 13 N. J. Eq. 78; Doolittle v. Supervisors, 18 N. Y. 160; Dawson v. St. Paul, etc., 15 Minn. 136; Green v. Lake, 54 Miss. 545-6; Spooner v. McConnell, 1 McLean, C. C. Rep. 482-3.

M. L. Gray for respondent.

(1) The power to vacate, like the power to open streets, can be exercised only for the public good. (2) Ordinance 12,457 is not the exercise of the power to vacate a street, but is a conversion to an unauthorized use. (3) The city has no power to alien or dispose of streets held in trust for public use. 2 Dill. M. Corp. (3 Ed.) sec. 650, and authorities in note 1, sec. 651, sec. 575 and note 1, sec. 660; Warren v. Lyons, 22 Iowa 351, 354; Commonwealth v. Bowman,3 Pa. St. 203; 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. Law, 19; Alton v. Transp. Co., 12 Ill. 60; Ransom v. Boal, 29 Iowa, 68, 70; Matthews v. Alexandria, 68 Mo. 119; Hitchcock v. St. Louis, 49 Mo. 484. (4) Equity will cause the trust to be observed and will enjoin a violation of it at the suit of parties injured. 2 Dill. M. Corp. (3 Ed.) sec. 653, and cases cited in note 1; Page v. Mayor, 34 Md. 564; Spiegel v. Gansberg, 44 Ind. 418; Huber v. Gazy, 18 Ohio, 27. (5) If other persons than the city were to obstruct Papin street, it would be the duty of the city to remove the obstruction. Blake v. St. Louis, 40 Mo. 570; Smith v. St. Joseph, 45 Mo. 449, 452; Bowie v. Kansas City, 51 Mo. 454, 462; Oliver v. Kansas City, 69 Mo. 79. (6) The charter itself prohibits the appropriation of public streets to private uses.

NORTON, J.

This cause is before us on defendant's appeal from the judgment of the St. Louis court of appeals affirming the judgment of the circuit court enjoining and restraining defendants from closing so much of Papin street as lies between Twelfth and Thirteenth streets in the city of St. Louis. The defendants claim the right to close or stop up said street by reason of the following city ordinance:

“12,457. 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 441.

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.

Sec. 2. This ordinance is not to take effect nor be in force unless a triangular slip of land in the 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...