Ingle v. City of Fulton

• Decision Date: 05 April 1954
• Docket Number: No. 22056,22056
• Citation: 268 S.W.2d 600
• Parties: INGLE et al. v. CITY OF FULTON.
• Court: Missouri Court of Appeals

Page 600

268 S.W.2d 600

INGLE et al. v. CITY OF FULTON.

No. 22056.

Kansas City Court of Appeals, Missouri.

April 5, 1954.

Frazier Baker, Fulton, for appellant.

John M. Cave, Fulton, for respondents.

DEW, Judge.

Plaintiff Mary Hughes Ingle and plaintiffs Clyde and Walter Pierson, co-partners, were the owner and lessees, respectively, of a certain tract of land, part of which lies within the city limits of the City of Fulton, Missouri. Their petition herein seeks to enjoin the defendant from enforcing its ordinance prohibiting the operation of prospecting and mining for fire clay under a lease entered into by the plaintiffs. The defendant answered, whereupon the plaintiffs moved for judgment on the pleadings, which motion was sustained. The defendant appealed to the Supreme Court of Missouri.

The jurisdictional grounds asserted in the Supreme Court were certain constitutional questions raised in the petition and the further contention that the amount in dispute exceeded the amount of $7,500. The Supreme Court has transferred the case to this court for the reason that the constitutional points were not so preserved as to vest jurisdiction in that court, and further for the reason that the amount in dispute was the value of the relief sought, as to which there were no allegations in the petition. 260 S.W.2d 666.

The petition pleads that plaintiff Mary Hughes Ingle is the owner of the tract of land described; that a part of the same lies within the city limits of the City of Fulton, Missouri; that on May 9, 1949, she and the plaintiffs Pierson entered into a written lease of the premises described for the purposes of mining fire clay thereon; that a copy of the lease is attached to the petition as a part thereof. It is alleged that on June, 9, 1949, the City Council of the City of Fulton enacted an ordinance prohibiting prospecting and mining within the city limits of the City of Fulton, and establishing a penalty therefor; that a copy of said ordinance is also attached to the petition and made a part thereof; that said lease is still in full force and effect; that the portion of the tract of land lying within the city limits of Fulton contains fire clay of a reasonable value of $35,000. The petition further avers that the ordinance referred to is unconstitutional in several respects pleaded; that such ordinance was not within the powers of a city of the third class, as set forth in Section 94.110 RSMo 1949, V.A.M.S.; that notwithstanding the invalidity of the ordinance, the officials of the city and its agents will enforce the same against plaintiffs and subject them to a multiplicity of suits; that plaintiffs desire and intend to conduct mining operations upon the premises, and particularly that portion within the limits of the City of Fulton. It is alleged that unless defendant and its agents, officials, servants and employees are restrained from enforcing said ordinance, plaintiffs will be subjected, as aforesaid, to a multiplicity of suits, and that plaintiffs have no adequate remedy at law. The prayer is that the court restrain and enjoin defendant, its agents, servants and employees, perpetually from enforcing or attempting to enforce said Ordinance No. 1189.

It is material to note the exhibits attached to the petition. They are a part of the petition for all purposes. Section 509.130 RSMo 1949, V.A.M.S.

The lease attached to the petition, dated May 9, 1949, granted and let to the plaintiffs Pierson the tract of land in question for a period during which '* * * semi-flint and/or other fire clay of suitable quality is found in profitable quantities thereon, unto the Lessees for the purpose of operating Mines, Quarries, Pits and Carrying on all operations necessary for the production and transportation of Clays'. Among the provisions of the lease it required of the lessees that the operations begin within six months from date; provided for payment of a royalty to the lessor of ten cents a ton of salable clay obtained from the land, and twenty cents a ton for such coal as may be mined in connection with the mining for clay; required that for the year 1950 and thereafter lessees move at least 15,000 tons of clay per calendar year, upon the penalty of termination of the lease in thirty days for failure so to do; permitted the lessees to pile excess dirt and to stockpile the clay on the premises in question, and stipulated that the lessees would not be required to fill any pits resulting from the operations.

The ordinance pleaded in the petition and attached as an exhibit is as follows:

'Section One: No person, firm or corporation, either in person or by agent, shall prospect or mine any property within the limits of the City of Fulton, Missouri.

'Section Two: No person, firm or corporation, either in person or by agent, shall permit any prospecting or mining on property owned or controlled by them within the limits of the City of Fulton.

'Section Three: Any person, firm or corporation violating this ordinance shall be deemed guilty of a misdemeanor and shall be fined not less than one dollar nor more than one hundred dollars ($100.00) or shall be imprisoned for a period not exceeding three months or both and each days violation shall constitute a separate offence.

'Section Four: This ordinance shall be in full force and effect from and after its passage by the Council and approval by the Mayor.'

The answer of the defendant admitted the ownership of the tract of land, as alleged, admitted the execution of the lease referred to in the petition, the enactment of the ordinance pleaded by the plaintiffs, and denied all other allegations of the petition. However, the answer proceeded to allege that the defendant's officials would presume the validity of all of its ordinances until otherwise held by a court of competent jurisdiction, and in the event that plaintiffs performed any acts contemplated by their petition and by Ordinance No. 1189, defendant would, in the absence of a restraining order by a court of competent jurisdiction, arrest the plaintiffs and subject them to trial in the police court of the City of Fulton for violation of said ordinance, and that there would be a separate complaint and trial for each day's violation of said ordinance. It was further pleaded in the answer that the mining operations as they have been conducted, as are conducted, and will be conducted by the plaintiffs within the limits of the City of Fulton 'necessitate' the use of explosives, dangerous and detrimental to the health and safety of the inhabitants of the city, and injurious to their property by reason of loud and unusual noises, flying debris, vibrations from concussions and explosives of sufficient force to maim and kill; that such operations 'necessitate' the frequent use of machinery, likewise dangerous and detrimental to the public health and safety and property of others by reason of unusual noises, vibrations and force sufficient to maim and kill; that such operations 'necessitate' leaving of the ground in a condition which would be dangerous and detrimental to the public health, and would annoy and injure the inhabitants, depreciate the value of their property and damage it by reason of deep pits that would be left, which, if left unguarded or inadequately guarded, would be attractive to children, expose them to danger by their falling into such pits or by the walls thereof falling onto children; that such pits would collect water, making the same attractive and dangerous to the children, and such water would become stagnant and unhealthful to the inhabitants of the neighborhood and breeding places for...