Holland Realty & Power Company v. City of St. Louis
| Decision Date | 10 April 1920 |
| Citation | 221 S.W. 51,282 Mo. 180 |
| Parties | HOLLAND REALTY & POWER COMPANY and SEVENTH STREET REALTY & POWER COM-COMPANY v. CITY OF ST. LOUIS, ARTHUR I. JACOBS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.
Reversed and remanded (with directions).
Charles H. Daues and H. A. Hamilton for appellants.
(1) The power of the respondents to lay and maintain electric wires and cables in and through the public streets and alleys of the City of St. Louis is dependent upon obtaining the consent of the city therefor. R. S. 1909, sec. 3367; Lockwood v Wabash Railroad Co., 122 Mo. 86; Grand Avenue Ry Co. v. Lindell Ry. Co., 148 Mo. 637. (2) The consent of abutting property owners to the laying and maintaining electric wires and cables in the public alleys cannot be substituted for the consent of the City of St. Louis required by law. City of Cincinnati v. Diamond Light Co., 4 Ohio App. 177. (3) The City of St. Louis has inherent power to enact ordinances providing reasonable regulations governing the laying and maintaining of electric wires and cables in and through the streets and alleys of said city. Laclede Gas Light Co. v. Murphy, 130 Mo. 10; Westport v. Mulholland, 159 Mo. 86; Plattsburg v. People's Tel. Co., 88 Mo.App. 306; Carthage v. Garner, 209 Mo. 688; State ex rel. v. City of Elizabeth, 39 A. 683; Colegrove Water Co. v. Hollywood, 90 P. 1053.
Walter C. Guels for respondent.
(1) The title to the strips of ground included in the alleys in question is in the abutting owners and they are the owners in fee thereof and are entitled, as a matter of right, subject to municipal and public regulation, to make any beneficial use of the soil thereof consistent with the prior and paramount rights of the public therein for street purposes proper. Gordon v. Peltzer, 56 Mo.App. 599; Brown v. Carrollton, 122 Mo.App. 276; Felhauer v. City of St. Louis, 178 Mo. 646; Cartwright v. Tel. Company, 205 Mo. 133; Kansas Natural Gas Co. v. Haskill, 172 F. 567; Alden v. Boston, 159 Mass. 324, 38 Ann. St. 423. (2) Ordinances and regulations relating to the use of public alleys and the like by public utility corporations for public purposes cannot prevent abutting owners of the fee in said alleys from using them properly for lawful private purposes. Williams v. Road Co., 21 Mo. 580; Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Julia Bldg. & Loan Assn. v. Bell Tel. Co., 88 Mo. 258; Colegrove Water Co. v. Hollywood, 90 P. 1053, 13 L. R. A. (N. S.) 904. (3) Acquiescence on the part of the City of St. Louis in long continued use of the sub-surface of the alleys in question by the abutting owners for private purposes without interfering with the rights of the public therein is equivalent to express permission. Julia Bldg. & Loan Assn. v. Bell Tel. Co., 88 Mo. 258, 266.
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 Seventh Street Realty & Power 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 ten or twelve 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 Number 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 facts, to-wit: that with the consent of the owners of the properties abutting on the alleys, ten or twelve 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 not 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...
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