Heinrich v. The City of St. Louis
| Decision Date | 10 December 1894 |
| Citation | 28 S.W. 626,125 Mo. 424 |
| Parties | Heinrich, Plaintiff in Error, v. The City of St. Louis, Appellant |
| Court | Missouri Supreme Court |
Appeal from and Error to St. Louis City Circuit Court. Hon. Daniel Dillon, Judge.
Affirmed.
W. C Marshall for appellant.
(1) The circuit court erred in refusing to give defendant's instruction for a nonsuit. The charter of the city of St Louis, paragraph 2, section 26, article 3, gives the mayor and assembly power, by ordinance, "to establish, open vacate * * * all streets, sidewalks, alleys," etc. Whether a street should be kept open or vacated is purely a matter of expediency, and is a question for the municipal assembly to decide. Having the power to vacate streets, it is for the municipal assembly to say whether the public interest requires a street to be kept open. State v. Clark, 54 Mo. 36; Railroad v. Springfield, 85 Mo. 676; Kittle v. Fremont, 1 Neb. 328; Riggs v. Board, 27 Mich. 262; Paul v. Carver, 26 Pa. St. 223; Stuber's Road, 28 Pa. St. 199; Brady v. Shinkle, 40 Iowa 576; Ellsworth v. Chickasaw County, 40 Iowa 571; Barr v. Oskaloosa, 45 Iowa 275; University v. Lexington, 3 B. Mon. 25. (2) The power to vacate streets being absolute, and as indisputable as the power to establish them, it has been held that the vacation and closing of one street afforded no ground of complaint when access remained by other streets. Fearing v. Irwin, 55 N.Y. 486; Coster v. Albany, 43 N.Y. 399; Smith v. Boston, 7 Cush. 254; Kellinger v. Railroad, 50 N.Y. 206; In re Osage Street, 90 Pa. St. 114; Pollack v. Asylum, 48 Cal. 490; Gerhardt v. Bridge, 16 R. I. 334; McGee's Appeal, 114 Pa. St. 476; Paul v. Carver, 23 Pa. St. 207; In re Howard Street (Pa.), 33 Am. and Eng. Corp. Cases, 453; Heilscher v. Minneapolis, 46 Minn. 529. (3) Upon the discontinuance of the public easement in Olive street, the freehold of the soil reverted to the abutting owner (the plaintiff). Harris v. Elliott, 10 Pet. (U.S.) 26; Barclay v. Howell's Lessee, 6 Pet. 498; Hyde Park v. Boyden, 94 Ill. 26; Wirt v. McEmery, 21 F. 233; Chicago v. Building Association, 102 Ill. 376; Gebhardt v. Reeves, 75 Ill. 301; Line Co. v. LaSalle, 117 Ill. 411.
C. P. & J. D. Johnson for plaintiff in error.
(1) There exists a clear right of recovery in this case. Lewis on Eminent Domain, sec. 134, and cases cited; Mills on Eminent Domain [2 Ed.], sec. 318, and cases cited; Elliott on Roads and Streets, p. 658, and cases cited; Dillon on Municipal Corporations, sec. 527, and cases cited; Belcher Sugar Refining Co. v. Elevator Co., 82 Mo. 121; Glasgow v. St. Louis, 87 Mo. 678; Glasgow v. St. Louis, 107 Mo. 198; Sheeby v. Brick Works, 25 Mo.App. 529; Cooley on Const. Lim. [6 Ed.], p. 670, and cases cited. (2) The court below erred in deducting from the damages proved, the value of that portion of the street reverting to the plaintiff by reason of the vacation. That belonged to the plaintiff already, subject only to the public use for street purposes. When that easement was destroyed, the land was still owned in fee by the plaintiff, as before, and it was lessened in value, as the proof shows, by reason of the destruction of the special use. Lewis on Eminent Domain, sec. 113; Elliott on Roads and Streets, pp. 302 and 518-519; Angell on Highways, sec. 301; 2 Waterman on Trespass, sec. 692, p. 80; Mills on Eminent Domain, secs. 55-56; Cole v. Drew, 44 Vt. 49; Roberts v. Sadler, 104 N.Y. 229; Gidney v. Earl, 12 Wend. 98; Bridge Co. v. Schaubacher, 57 Mo. 582; Ass'n v. Bell Tel. Co., 88 Mo. 258. (3) The question of benefits was, in this cause, a special defense, which must be pleaded, in order for defendant to avail himself of it. R. S. 1889, sec. 2049.
The plaintiff is the owner of a parcel of land in the city of St. Louis, two hundred feet in length from north to south, and fifty-three feet wide, measuring at right angles to the side lines. The north end fronts on what was formerly Olive street. That street ran in a southeast and northwest direction, so that the lot had a front of sixty feet, measuring along the south line of Olive street. The south end of the lot does not front on any street. The west side line extends along the east line of Taylor avenue. There is also an alley running east and west across the lot.
In March, 1890, the city, by an ordinance duly enacted, vacated a part of Olive street, including therein the part on which the plaintiff's property abutted.
This is a suit to recover the damages sustained because of a depreciation in the value of the property, caused by the action of the city in vacating that part of Olive street. The court gave judgment for plaintiff, from which the defendant appealed. Plaintiff sued out a writ of error. The two cases will be treated as one, the same as in case of cross appeals.
1. The municipal assembly of the city of St. Louis has the power conferred upon it to vacate streets and alleys; and it is for the assembly, and not the courts, to say when that power shall be exercised. As the city has this power it is insisted, on its behalf, that the vacation of one street affords no ground of complaint where the property owner still has access to his property by another street or alley, and hence the defendant's demurrer to the evidence should have been sustained.
Though the city has the right and power to vacate streets when and where its legislative body shall deem best for the public good, still it does not follow that the city is not liable for damage resulting to abutting property owners, arising from the exercise of that power. The power must be exercised subject to the constitution which provides that private property shall not be taken or damaged for public use without just compensation. In the case of Glasgow v. St. Louis, 107 Mo. 198, 17 S.W. 743, we held injunction would not lie to restrain the enforcement of an ordinance vacating a part of a street, at the instance of persons whose property did not abut on the vacated portion of the street. But it was said in that case: "There is no doubt but a property owner has an easement in a street upon which his property abuts, which is special to him and should be protected." While the owner of a lot abutting on a public street has the same right to the use of a street that rests in the public, he at the same time has other rights which are special and peculiar to him, and the right of ingress and egress is one of them. This right of access is appurtenant to his lot, and is private property. To destroy that right is to damage his property, and when this is done for the public good, the public must make just compensation therefor. All this flows as a necessary consequence from what was said in the Glasgow case, and we do not feel called upon to enter upon a further review of the cases on this subject. Some things must be taken as settled by former adjudications.
It is suggested that the plaintiff may still...
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