Holland Realty & Power Co. v. City of St. Louis

• Citation: 282 Mo. 180,221 S.W. 51
• Decision Date: 10 April 1920
• Docket Number: No. 20785.,20785.
• Court: United States State Supreme Court of Missouri
• Parties: HOLLAND REALTY & POWER CO. et al. v. CITY OF ST. LOUIS et al.

221 S.W. 51

282 Mo. 180

HOLLAND REALTY & POWER CO. et al. v. CITY OF ST. LOUIS et al.

No. 20785.

Supreme Court of Missouri, Division No. 1.

April 10, 1920.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Suit by the Holland Realty & Power Company and another against the City of St. Louis and others. From judgment for plaintiffs, defendants appeal. Affirmed in part; reversed and cause remanded in part.

Charles H. Daues and H. A. Hamilton, both of St. Louis, for appellants.

Walter C. Duels, of St. Louis, for respondents.

GOODE, Z.

This suit was filed by the Holland Realty & Power Company, a corporation (hereinafter called the Holland Company), to have the defendants enjoined from cutting, removing, or in any way molesting a small cable and wires of plaintiff, used at first by the Holland Company and now by plaintiff company to convey currents of electricity to a building owned by plaintiff and some adjacent buildings. The lot of plaintiff is on the west side of Seventh street in the city of St. Louis, and is bounded by that street on the east and by alleys on the north, west, and south. A building known as the Holland Building stands on the lot, and rooms in it are let to tenants. Across the alley on the north is the Republic Building; across the alley to the west, the Watsonia Building; and across the alley to the south, a structure known as the South Buildings. Besides the Holland Building, an electric light plant was constructed, 10 or 12 years before this suit was commenced, on the premises, which we will designate as the Holland lot. The title in fee to the ground occupied by the several alleys is owned by the respective abutting proprietors to the middle line of the alleys. After the power plant had been put on the Holland lot, but just when is not shown, the Holland Company, with the consent of the adjacent proprietors, extended a small cable under the surface of the west alley to the Watsonia Building, and a wire under the alley to the north to the Republic Building, and a wire under the alley to the south to the South Buildings; and, by those means of transmission, conveyed currents of electricity into the three buildings, thereby furnishing light to the occupants of them and also to persons occupying other buildings in the same block the Watsonia is in. Plaintiff avers this business has been "going on for some time past," without averring how long. The cable and wires are several feet beneath the surface of the alley, but the exact depth is not given in the evidence. The defendants, other than the city of St. Louis, are officials of the city and constitute its board of public improvements. The defendants notified the Holland Company to remove the wire by December 6, 1910; but the company omitted to comply with the order, and, when this action was begun, defendants were preparing to cut and remove the cable and wires because the Holland Company had laid them across the alleys without having complied with an ordinance of the city, which provided that

"No wires, tubes or cables, conveying electricity for the production of light, heat or power, shall hereafter be placed along or across any of the streets, alleys or public places in the city, by any person, corporation or association not having previous to the passage of the ordinance, 16894, approved October 26, 1892, accepted and complied with Ordinance No. 12723, now amended; or unless duly authorized by the municipal assembly, and then only as provided by ordinance."

The excerpt quoted is from section 1093, Revised Code (1907) of St. Louis. It is conceded the Holland Company had not accepted and complied with Ordinance No. 12723, when it laid the cable and wires, nor had it been authorized to lay them by an ordinance of the municipal assembly of St. Louis. The provisions of ordinance 12723 are nowhere shown in the record, nor are they material to the case, in view of the admission that the Holland Company had not complied with them, nor obtained special authority from the city to lay its cable and wires. A cross-complaint was filed by the defendants, asking a mandatory injunction to compel the removal of those appliances.

After the institution of the suit, the Seventh Street Realty & Power Company (hereafter called the Seventh Street Company) was incorporated, became the owner of the Holland premises, including the electric power plant, and, by agreement of parties, was made the plaintiff. Both it and the Holland Company were empowered by their charters to furnish light, heat, and power to the tenants of their property and to other persons, and to do all acts incident thereto. No averment of the petition was denied except that the plaintiff had the right to lay and maintain the cable and wires under the surface of the alleys. The only witness was the secretary of plaintiff, and he testified the cable and wires were laid several feet below the surface of the alleys and in no manner interfered with the use of the latter by the public or the city; that they were safely constructed and never have been, to any extent, a source of danger to persons or property. In their answer the defendants avow that unless the wires and cable are removed, or an injunction granted, defendants will cut and remove them.

The court below dismissed the cross-complaint and made permanent the temporary injunction theretofore issued in favor of plaintiff, restraining defendants and their successors, agents, etc., from "interfering with the electric wires, cables, and connections of plaintiff until such time as the present use by plaintiff interferes in any way with any proposed use by the city" or the tenants of the several adjacent buildings. In the decree the court made findings of fact, to wit: That with the consent of the owners of the properties abutting on the alleys, 10 or 12 years before the institution of this proceeding, the Holland Company had laid the electric wires and cable, several feet under the surface of the alleys and across the same, without permit or ordinance right from the city, and had maintained those appliances ever since in accordance with the city's requirements; that the appliances were safely constructed and laid, were pot and never have been a source of danger, inconvenience, or harm to persons or property, and interfere in no way with any use or proposed use to which the public, or the city of St. Louis, has or will subject the alleys; that the original and the present plaintiff have operated an electric lighting plant on said lot, according to the authority of its charter, and have furnished therewith light and power to various persons in its own and the surrounding buildings; that defendants had threatened and were about to cut the wires, an act that would work irreparable damage to plaintiff and for which no adequate remedy at law existed, because the amount of damage could not be definitely ascertained. The defendants took this appeal.

The section of the statutes on which the defendants rely for authority in the city to enact the ordinance forbidding conductors of electricity to be placed along and across streets and alleys without municipal authority provides generally that Corporations formed under the article, of which the section is a part, for the purpose of supplying towns, etc., with gas, water, or electricity, shall have the power to lay conductors for conveying those substances through the streets and alleys "with the consent of the municipal authorities thereof, and under such reasonable regulations as said authorities may prescribe." R. S. 1909, § 3367. Another pertinent section is the one which empowers a city, town, or village, to authorize, by ordinance, any company organized to supply electric light and power, and incorporated under the laws of the state, to place its "wires and other fixtures along, across or under any of the public roads, streets, alleys or public places within such city, town, or village, subject to such `lilies, regulations and conditions as shall be expressed in said ordinance." R. S. 1909, § 9947.

1. The record contains nothing of allegation or evidence to show either knowledge by the city officials of the laying of the wires under the alleys when it was done, or how long before the city's demand for their removal those officials learned they were located therein. The court below found the wires were laid and their use begun 10 or 12 years before the filing of this suit, but this finding went beyond what the record warrants. The case stands mainly on the admissions in the pleadings, only one person having testified, and his testimony was about nothing except the depth at which the wires lay and their harmlessness.

The statutes cited required the consent of the city to be given by the "municipal authorities," and this means the legislative authorities acting by an ordinance. 4 McQuillin, Munic. Corp. § 1642, p. 3433; State ex inf. v. Light & Power Co., 246 Mo. 653, 666, 152 S. W. 76. The general ordinance on the subject required consent to be granted in the same mode, unless a prior ordinance had been complied with, and admittedly it had not. Besides, the parties stipulated that the pleadings in the case, and the stipulation itself, should constitute an agreed statement of the facts whereon the case was submitted; and the answers alleged the wires were laid and had been maintained without municipal authority.

When consent to use a city's public ways can be obtained only from its own legislative assembly, and in a particular mode (in this case by an ordinance), the administrative officers cannot waive the necessity of procuring consent from the assembly, and in the prescribed mode. Neither can they, by acquiescing in the use of a public way by a utility corporation, estop the city to terminate the use. Dugdale v. Light & Power Co., 195 Mo. App. 243, 256, 189 S. W. 830; Township of Bangor v. Bay City Traction Co., 147 Mich. 165, 110 N. W. 490, 7 L. R. A. (N. S.) 1187, 118 Am....