John K. Cummings Realty & Inv. Co. v. Deere & Co.

• Decision Date: 10 December 1907
• Citation: John K. Cummings Realty & Inv. Co. v. Deere & Co., 106 S.W. 496, 208 Mo. 66 (Mo. 1907)
• Court: Missouri Supreme Court
• Parties: JOHN K. CUMMINGS REALTY & INV. CO. v. DEERE & CO.

106 S.W. 496

208 Mo. 66

JOHN K. CUMMINGS REALTY & INV. CO. v.DEERE & CO.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. MUNICIPAL CORPORATIONS — OBSTRUCTING STREETS — PUBLIC NUISANCES — RIGHTS OF INDIVIDUALS TO ENJOIN.

An action to prevent defendant from building on part of a street, the ordinance vacating which is alleged to be void, and as a result of which acts it is alleged such part of the street could not be used by the public generally, is one to enjoin a public nuisance, which cannot be maintained by a private corporation, whose property does not abut on the part of the street in question; it not alleging that its property fronting on the street several blocks away will be specially damaged, but merely that it will be greatly damaged, and will depreciate in value more especially than the general property in the city, being located near the threatened obstruction.

2. SAME — ORDINANCES VACATING STREET — ENJOINING ENFORCEMENT.

One whose property does not abut on the part of a street vacated by a valid ordinance under a power in the city charter may not maintain an action to enjoin enforcement of the ordinance, though he, in common with all others, may be inconvenienced by enforcement of the ordinance.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by the John K. Cummings Realty & Investment Company against Deere & Co. Judgment for defendant.Plaintiff appeals.Affirmed.

This cause is brought to this court by appeal on the part of the plaintiff from a judgment of the circuit court of the city of St. Louis dismissing its bill in equity praying for injunctive relief against the defendant.To fully appreciate the nature of this proceeding and the legal propositions involved, it is well to reproduce the petition and answer.

The petition, omitting formal parts, is as follows: "Plaintiff states that it is a corporation duly incorporated under the laws of Missouri; that the defendant is also a corporation incorporated under the laws of the state of Illinois.Plaintiff further states that Wm. Chambers, W. Christy, and Thomas Wright were joint owners in fee simple of a large tract of land which was then located in the county of St. Louis, but which is now, by the extension of the limits of the city of St. Louis, lying and being in the said city of St. Louis, Mo.; that on the 29th day of June, A.D. 1816, the said owners caused the same to be platted and laid out in lots, streets, and alleys, and filed a plat of said lands and lots and streets and alleys, and dedicated the said streets and alleys to public use, and more especially for the use of those who would become purchasers and owners of lots or parcels of land in said lands so laid out and platted; that the said owners caused the said plat and dedication to be duly recorded in the recorder of deeds' office of the then county of St. Louis in Plat Book 1, vol. 1, p. 40, to which plat reference is made for the purpose of locating the property owned by the plaintiff and the streets and alleys as laid out and dedicated by the said owners to public use for the especial benefit of the prospective purchasers of said lots in said tract of land.Plaintiff further states that it is the owner in fee simple of a part of said lands so laid out by said owners in their said addition and sold after the dedication of the streets on said plat; that it acquired said lots by mesne conveyances from the said owners and improved the same for dwelling purposes, which lots are more particularly described as follows, to wit: A lot fronting on Monroe street, 52 feet and 6 inches, by an irregular depth of 137 feet 8½ inches on the west line of Eleventh street, bounded on the north by Monroe street, formerly Washington street, designated on said plat, and east by Eleventh street, formerly designated on said plat as Sixth street.Plaintiff further states that Monroe street as dedicated by the said Wm. Chambers, W. Christy, and Thomas Wright has been used as a public highway for more than 30 years last past from Second street up to and past the plaintiff's property, it being as dedicated by said persons 60 feet in width; that the defendant is now claiming the right to divert a portion of Monroe street from the uses and purposes to which it was dedicated for a public highway, and threatening to appropriate it to its private use and place permanent obstructions thereon, so that it cannot be used by the public generally on the following part of said Monroe street, to wit: A strip of ground 15 feet in width, extending along the south side of Monroe street from the east line of Broadway to the west line of Second street.Plaintiff further states that, if the defendant be permitted to carry out its purpose and convert said part of said street to its private use and benefit and to other and different uses and purposes than those designated and intended by the said Wm. Chambers, W. Christy, and Thomas Wright, the plaintiff's property will be greatly damaged and will also depreciate in value, more especially than the general property in the city of St. Louis, being located on said Monroe street, near to where the obstruction and permanent diverting is threatened to occur and be placed by the defendant.Plaintiff further states that it is entirely remediless at law; that the city of St. Louis, the trustee upon which rests the duty to preserve the street as aforesaid for public use, is now aiding and attempting to further the defendant in its unlawful purpose and contemplation of diverting the said part of said street to its private use.Wherefore, your petitioner prays for a decree that the defendant be enjoined and restrained from exercising any right or authority over the said part of Monroe street, hereinbefore described, which would be inconsistent with the uses and purposes for which it was dedicated, and that it be enjoined and restrained from erecting or placing any obstruction on said street or any part thereof which will in any manner interfere with the use of all parts of said street, as it was laid out, by the public generally, and for its costs in this behalf incurred."

To this petition the defendant interposed the following answer:

"Comes now the defendant in the above-entitled cause, and, for answer to plaintiff's petition herein, denies each and every allegation therein contained.Further answering, this defendant avers that it is the owner in fee simple of all that part of city block No. 318, fronting northward upon Monroe street, extending from the east line of Broadway to the west line of Second street, in the city of St. Louis, and state of Missouri; that the property in said locality has become greatly deteriorated for residence purposes, or for any other purpose other than manufacturing business, and has been in that condition for several years last past; that in the year 1903defendant was about to erect, and did begin the erection of, a large manufacturing establishment upon said block, extending to the south line of said Monroe street, between said Broadway and Second street, which manufacturing establishment, when completed, will furnish employment for several hundred employés, thereby building up said part of the city, and thereby enhancing the value of defendant's property for revenue purposes, and increasing the income of the city of St. Louis, by reason of enhanced taxes upon its said property; that, in order to utilize defendant's said land and the manufacturing establishment which it is erecting thereon, it became necessary to lower the grade of a 15-foot strip immediately north of defendant's said property, and which before the passage of the ordinance hereinafter specified was a part of said Monroe street mentioned in plaintiff's petition; that in the month of November, 1903, the municipal assembly of the city of St. Louis passed a city ordinance vacating a strip of ground 15 feet in width, extending along the south side of Monroe street from the east line of Broadway to the west line of Second street, which ordinance was to take effect upon the payment of $3,000 into the city treasury by the owners of the property on the south side of Monroe street from said east line of Broadway to the west line of Second street, and that subsequent to the passage of city ordinance this defendant did pay into said city treasury said sum of $3,000 in pursuance of the terms of said ordinance, and thereupon said 15-foot strip, being the one mentioned in plaintiff's petition, became vacated and became the property of this defendant; that said city ordinance is in words and figures as follows, to wit:

"`Ordinance 21,285.

"`An ordinance to vacate fifteen feet on the south side of Monroe street between Broadway and Second street.

"`Be it ordained by the municipal assembly of the city of St. Louis, as follows:

"`Section 1.A strip of ground fifteen feet in width, extending along the south side of Monroe street, from the east line of Broadway to the west line of Second street, is hereby vacated as a public thoroughfare and surrendered to the owners of the land in city block three hundred and eighteen respectively, contiguous to said strip.

"`Sec. 2.This ordinance shall not take effect unless and until the sum of three thousand dollars is paid into the city treasury by the owner or owners of the property on the south side of Monroe street from the east line of Broadway to the west line of Second street, said sum to be the absolute property of the city of St. Louis.

"`Approved November 17, 1903.'

"Defendant further avers that power and authority existed in the municipal assembly of the city of St. Louis, with the approval of the mayor, to pass said city ordinance, and that the sum paid by said defendant was the full value of said strip of ground, and said $3,000 inured to the benefit of said city of St. Louis.Wherefore, having fully answered, defendant prays to be hence dismissed with its costs."

The plaintiff filed a demurrer to...