Hafner Mfg. Co. v. City of St. Louis

• Decision Date: 19 December 1914
• Docket Number: No. 16983.,16983.
• Citation: 172 S.W. 28
• Parties: HAFNER MFG. CO. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

172 S.W. 28

HAFNER MFG. CO. v. CITY OF ST. LOUIS.

No. 16983.

Supreme Court of Missouri, Division No. 1.

December 19, 1914.

1. APPEAL AND ERROR (§ 260) — QUESTIONS REVIEWABLE—EXCEPTIONS.

A ruling on evidence, to which no exception was saved, cannot, under Rev. St. 1909, § 2081, be considered on appeal.

2. APPEAL AND ERROR (§ 882)—HARMLESS ERROR —ERRONEOUS ADMISSION OF EVIDENCE.

A plaintiff in forcible entry and detainer, who introduces in evidence deeds under which he claims, may not complain of the introduction by defendant of evidence under which it claims.

3. TRIAL (§ 83)—OBJECTIONS TO EVIDENCE.

An objection to evidence as incompetent, irrelevant, and immaterial is too general, and an exception saved to the overruling thereof is not reviewable.

4. TRIAL (§ 83)—OBJECTIONS TO EVIDENCE.

An objection to the admission in evidence of a municipal ordinance on the ground that it is forbidden by the Constitution, is too general, and the objection, to be available, must point out the provisions relied on.

5. FORCIBLE ENTRY AND DETAINER (§ 29)— ISSUES—EVIDENCE—ADMISSIBILITY.

Where, in forcible entry and detainer against a city claiming the property as a wharf, plaintiff relied on possession under license granted by a third person, the files and records in ejectment by the city against the third person, offered to show the character of the possession of plaintiff, were properly received in evidence as against the objection that title was not involved.

6. MUNICIPAL CORPORATIONS (§ 719)—PUBLIC WHARVES—"PUBLIC HIGHWAY."

A public wharf on a navigable stream connected with public streets and in a sense an extension of the streets is a "public highway," and the right to the common use of it in the public and the rights of the city in and its duty toward it are governed by the laws governing public highways.

7. MUNICIPAL CORPORATIONS (§ 274)—PUBLIC WHARVES—IMPROVEMENTS.

A city owning a public wharf has legislative and ministerial discretion as to the particular part of the wharf it will improve, and it need not improve the whole tract conveyed to it for a public wharf within any period of time, and the improvement or nonimprovement thereof does not affect the rights of any individual.

8. FORCIBLE ENTRY AND DETAINER (§ 30)— CONVERSION OF PERSONALITY.

A plaintiff in forcible entry and detainer may not recover damages for wrongful conversion of its chattels on the premises in controversy.

9. MUNICIPAL CORPORATIONS (§ 719)— WHARVES—REMOVAL OF OBSTRUCTIONS.

A city owning a public wharf may remove obstructions wrongfully there without becoming civilly liable therefor.

10. FORCIBLE ENTRY AND DETAINER (§ 9)— STATUTORY PROVISIONS— "LAWFULLY POSSESSED" —"LAWFUL"—"PEACEABLE."

Under Rev. St. 1909, § 7668, providing that plaintiff in forcible entry and detainer need only show that he was lawfully possessed of the premises, and that defendant unlawfully entered into and detained the same, a plaintiff may not maintain forcible entry and detainer against a city taking possession of property dedicated to it for a public wharf prior to the entry thereon by plaintiff, for the words "lawfully possessed" mean peaceable possession, and the word "peaceable" does not mean a tortious possession, and the term "lawful" means only peaceable or quiet possession, contra distinguished from possession which is not merely constructively tortious but actually so.

11. FORCIBLE ENTRY AND DETAINER (§ 4)— ELEMENTS—"FORCE"—VIOLENCE.

A city removing, from a public wharf, lumber obstructing it, after giving notice to the owner to remove it, does not use force and violence, within the forcible entry and detainer statute; the "force" within the statute being private force unlawfully exerted, and public force of the state lawfully exercised not being the means of a wrongful entry.

12. ADVERSE POSSESSION (§ 8)—APPROPRIATION OF PUBLIC WHARF.

Under Rev. St. 1909, § 1886, providing that nothing contained in any statute of limitation shall extend to any land appropriated to any public use, one cannot acquire title under the statute of limitations by possession of a public wharf.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by the Hafner Manufacturing Company against the City of St. Louis. From a judgment for defendant, plaintiff appeals. Affirmed.

E. P. Johnson and Richard A. Jones, both of St. Louis, for appellant. William E. Baird and Everett Paul Griffin, both of St. Louis, for respondent.

LAMM, J.

Forcible entry and detainer. Plaintiff, cast below on a trial to the merits, appeals. Plaintiff corporation owned a block of ground on Dock street abutting on the public wharf in North St. Louis. On said block was situate its manufacturing plant. If a certain two of the parallel lines of that block were produced to the Mississippi river, they include a part of said wharf. On a part of the land lying between said lines so produced, plaintiff had for some time piled lumber for use in its manufacturing business. It seems this lumber, of the value of, say $40,000, was piled there by leave of the Hafner heirs, who, in turn, as owners of the stock in plaintiff corporation controlled the latter.

At a certain time in the late summer and fall of 1910, defendant city, acting through its mayor, its harbor and wharf commissioner, and its law department served notice on plaintiff to remove said lumber — this by virtue of certain ordinances. On failure of plaintiff to do so (which happened) the city marshal was ordered to remove the same. Thereupon that officer, in a writing aptly referring by description to the part of the wharf so obstructed, to the municipal code and pertinent ordinances, gave plaintiff notice to remove the lumber piles within 10 days, or in default that he (the marshal) would remove them. It seems this notice had been preceded by negotiations for, say, two months, looking to the clearing away of the alleged obstructions, and that, when the marshal finally served notice, plaintiff asked to be further notified of the exact day the officer would appear on the scene and begin removing the lumber — this evidently for the purpose of entering a verbal protest, and thereby laying a supposed foundation for projected litigation. Accordingly the marshal, by word of mouth, gave plaintiff notice when he appeared with his men and teams, and then and there plaintiff protested against his contemplated action.

Going back a little, it will do to say that, in the prior negotiations between the city officers and plaintiff, the latter asserted "color of title" and the right to possession. Moreover, as the ordinance of the city provided for the seizure and sale of material wrongfully stored on wharf property and constituting an obstruction, plaintiff, having a large amount of lumber in jeopardy, concluded not to put all its eggs in one basket. Accordingly immediately before the marshal came on the scene to remove the lumber, it seized time by the forelock and removed substantially all of any value. It left a few "top boards" and some stakes used in piling, and we get the impression these were left for the very purpose of testing plaintiff's rights without, at the selfsame stroke, putting too much at hazard. The marshal removed the lumber so left, and after due notice sold it for the rise of $50 on due advertisement at public auction. One of plaintiff's officers estimated the real value of the lumber so sold at the rise of $300. Having cleared off the wharf, the marshal left the premises vacant, and so they are to this day. On the same day the marshal began removing the lumber, or presently, and while it was in the course of being removed, plaintiff began this action in forcible entry and detainer before a justice of the peace, alleging it was "lawfully possessed" of the premises, describing them, and that on the 21st day of November, 1910, while it was so "in lawful possession thereof, defendant city forcibly entered into the possession of the premises and forcibly detains possession from plaintiff, to its damage," etc., wherefore plaintiff prays "judgment of restitution" and for its damages, including the value of the monthly rents and profits, etc.

The cause was taken by certiorari to the circuit court, and there defendant filed an answer, admitting it was a municipal corporation, denying every other allegation in the complaint and its guilt in the manner and form charged. Defendant then, by affirmative allegations, asserted its charter power to establish, open, and regulate public wharves; that in pursuance of that power, by proper ordinances, it had established such wharves, and was in control and possession of them; that the property described in the complaint was part and parcel of the property established by defendant as a public wharf, and of which defendant had had possession for 50 years prior to the suit as part of its said wharf. The answer next went on in detail to set up the power of defendant city to prevent and abate nuisances by ordinances, to remove all obstructions and incumbrances from public property, and specially pleaded certain ordinances making persons guilty of a misdemeanor who place upon any wharf any nuisance, incumbrance, or impediment, requiring the same to be removed by such parties, and providing that if they are not removed within the time designated by a named officer, to wit, the harbor and wharf commissioner, such parties shall, as said, be guilty of a misdemeanor, pleading also another ordinance leveled against the occupancy of and encroachment upon or obstruction of public wharves, and providing for the removal of such obstructions, averring that plaintiff unlawfully placed upon a certain part of defendant's public wharf, to wit, the premises described in the complaint, obstructions consisting of piles of lumber, and thereby creating a nuisance upon such public wharf, to the hindrance and detriment of the public in its use of the same. The answer went on to justify the removal of the lumber by...