Hayes v. Kansas City

• Decision Date: 07 April 1922
• Docket Number: No. 22463.,22463.
• Citation: 242 S.W. 411,294 Mo. 655
• Parties: HAYES at al v. KANSAS CITY et al.
• Court: Missouri Supreme Court

242 S.W. 411

294 Mo. 655

HAYES at al v. KANSAS CITY et al.

No. 22463.

Supreme Court of Missouri, Division No. 2.

April 7, 1922.

Motion for Rehearing Overruled June 19, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Suit by L. A. Hayes and others against Kansas City. Mo., and others, in which plaintiffs' bill was dismissed, and plaintiffs appeal. Reversed and remanded, with directions to enter judgment, perpetually restraining the defendants from interfering with plaintiffs' lawful use of their property.

Plaintiffs (appellants) on January 19, 1920, filed their petition in the circuit court of Jackson county for an injunction against defendant city and its agents (respondents) to restrain said city from interfering with their private use of certain alleged portion of Baltimore avenue in said city. A temporary restraining order was made, but upon final hearing same was dissolved, and plaintiffs' bill dismissed. However, upon motion of plaintiffs, pending further proceedings, including the appeal to this court, the restraining order was re-entered and continued in force.

The petition alleged that

The plaintiffs were citizens and residents of Kansas City, and were the owners in fee simple of certain lots in block D and C in Bismark Place, in Kansas City, and that they had owned the same, "together with all the real estate and appurtenances abutting thereon, for a period of more than 30 years, under certain warranty deeds and conveyances from persons owning said property, and have occupied the same and had the full, complete, continuous, and uninterrupted possession thereof under said deeds and claims of ownership for and during all of said period of time; that all of said plaintiffs are and were at the times mentioned herein the officers, directors, and owners of all of the capital stock of the Lyle Rock Company, and that the plaintiff the Lyle Rock Company is a corporation duly organized and existing under and by virtue of the Constitution and laws of the state of Missouri, and during the last 13 years has been the tenant, occupant, and in possession of the above-described real estate by and with the consent of the other plaintiffs herein, and during said time has been engaged in the manufacture of brick and the quarrying of rock for sale and distribution; that immediately after becoming the tenant and occupant of said real estate, the said Lyle Rock Company, at great and considerable expense and the expenditure of many thousands of dollars, built, constructed, erected, and placed upon said real. estate brickkilns, buildings, rock crushers, machinery, and other equipment and appliances necessary to the proper operation of said business and during all of said time the plaintiffs herein have enjoyed the exclusive and peaceable possession of said premises."

It was then averred that—

The defendant through its city engineer and its members of the board of public works and superintendent of streets "are now threatening to go upon said premises, and for the purposes of wrongfully and willfully removing therefrom all of said buildings, personal property, machinery and equipment owned by the plaintiffs herein, and have a ad now are attempting to unlawfully and forcibly occupy said premises, without having any right, title or interest therein, either in law, or in equity, to said property herein described, nor have they any right to the possession thereof."

Plaintiffs further averred that they had built up a large and lucrative business upon said premises, and that such threatened interference by the city and its agents, if carried out, would injure and wholly destroy said business.

After alleging that they were "In full, open, obvious, complete, continuous, uninterrupted enjoyment and adverse possession of" said premises "under claim of right and intermediate conveyances from persons owning and holding the same prior to the granting and conveying of said property to the plaintiffs herein," they allege:

"That in July, 1887, there was platted the aforesaid city addition, known as Bismark Place, wherein was contained the lots before designated and, * * * there was platted a pretended avenue, designated upon said plat as Baltimore avenue; that from said time to the present time no part of said designated pretended avenue was ever used for public travel, nor was there ever any money expended upon the same for the purpose of converting it into an actual and used county road, or city street; that plaintiffs and their grantors have used, ever since the aforesaid platting, and are now using said ground in connection with said lots and the aforesaid buildings and improvements are in part thereupon, and have been for a period of 13 consecutive years, and that the same were all built, erected, and constructed by and with the knowledge, consent, approval, and acquiescence of the defendants and each of them, and their predecessors in office, and they are now forever estopped to deny the ownership of these plaintiffs, or to forcibly and unlawfully interfere with their quiet enjoyment thereof. * * * That during all of the time of the ownership * * * for a period of more than 30 years, said pretended avenue, as platted, has never been used for public purposes, and on account of the irregular, uneven, and precipitous condition and location of said lots and real estate the same is, and has been during all of said time, absolutely impracticable for any such use."

It was further alleged that all of said property "was located beyond the corporate limits of Kansas City, Mo., and the pretended dedication of said avenue and highway to Kansas City and the acceptance thereof at said time, in the year 1887," was unlawful and beyond the charter power and authority of said city, and that it so remained without the corporate limits of said city for a period of more than 10 years thereafter, and that, said attempted dedication being null and void, and plaintiffs and those under whom they claimed having been in adverse possession of said property, they now enjoyed the right to an uninterrupted possession.

Defendants answered, denying ownership In plaintiffs of said property, or that they were about unlawfully to enter said premises without authority, but asserted that said property was included in Bismark Place, an addition regularly platted in July, 1837, and accepted by said city, and that on the plat filed there was designated a street or avenue called Baltimore avenue. Defendants admitted plaintiffs were occupying said alleged street, but denied that they had occupied same for the period specified in their petition, and denied that the dedication of said street and the acceptance thereof in 1887 were null and void. Defendants allege:

"That in July, 1887, the then owner of the land, now known as Bismark Place, duly platted said land into an addition designated Bismark ?lace, which said plat was duly acknowledged and filed for record in the recorder's office in Jackson county, Mo.; that in and by said plat said owner dedicated to public use as a street Baltimore avenue and other streets in said addition;" that subsequently Kansas City extended its limits "so as to embrace said land, which was in 1897 graded, paved and otherwise improved various of the streets in said addition, including part of said Baltimore avenue."

"And defendants aver that plaintiffs have encroached upon and are now occupying and using said street or avenue without lawful right so to do, and the use they make thereof constitutes a nuisance."

Upon a trial, plaintiffs sustained the allegations of their petition with respect to their ownership of certain lots and blocks and their occupation and use thereof in Bismark Place; that "Bismark Place" was not contiguous to Kansas City at the time it was platted; that it was situated a great distance south of said city, and that the city of Westport, a separate municipality, intervened between said addition and Kansas City, and that said Bismark Place was a considerable distance south of Westport.

It was shown that said property had never been used for urban purposes, but for many years after the filing of said plat, was inclosed and used for agricultural and dairy purposes, and that the particular property involved in this litigation was rough and uneven and Impractical for the use of any portion thereof as a street or highway, and that plaintiffs had constructed valuable properties upon a portion of Baltimore avenue, as marked on the plat of said Bismark Place. It was admitted that the city, through its agents, were about to remove plaintiffs and their property from said alleged street, and would have done so but for the restraint imposed by the injunction suit.

Respondents' testimony, over the objection of appellants, tended to show that smoke, fumes, and gases, issuing from the brickkilns of plaintiffs, maintained and operated on said property, constituted a great annoyance to residents In the vicinity, and that the blasting of rocks in the stone quarry, situated thereon, was a constant source of annoyance and peril. It appeared without controversy that in 1897 the city limits of Kansas City had extended southwardly to said property, and that thereafter had been extended to a point considerably beyond, so that at the time of this suit all of said property was within the corporate limits of said city.

Appellants urge here the invalidity of the dedication of Baltimore avenue in said Bismark Place and that the decree of the trial court violated certain provisions of our fundamental law, because denying to citizens the equal protection of the law and taking property without compensation. Respondents in turn urge the validity of said dedication, and the issue is sharply drawn on that question.

Hardin B. Manard, Frank P. Walsh, and James P. Aylward, all of Kansas City, for appellants.

M. A. Fyke and J. C. Petherbridge, Asst. City Counselors, E. B. Aleshire and Edwin C. Meservey, all of Kansas...