Julia Bldg. Ass'n v. Bell Tel. Co.

• Decision Date: 17 April 1883
• Citation: 13 Mo.App. 477
• Parties: JULIA BUILDING ASSOCIATION, Appellant, v. BELL TELEPHONE COMPANY ET AL., Respondents.
• Court: Missouri Court of Appeals

13 Mo.App. 477

JULIA BUILDING ASSOCIATION, Appellant,

v.BELL TELEPHONE COMPANY ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Apr. 17, 1883.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

MADILL & RALSTON, for the appellant: The plaintiff, as owner of the fee of the street, had a common-law right, in the absence of any prohibitory city ordinance, to excavate the sidewalk and build the walls and sidewalk for basement purposes.-- Fisher v. Thirkell, 21 Mich. 1; McCarthy v. Syracuse, 46 N. Y. 194; Dubuque v. Mahoney, 9 Iowa, 450; Bliss v. Ball, 99 Mass. 597; White v. Godfrey, 97 Mass. 572; Lafayette v. Blood, 40 Ind. 62; Philadelphia v. Presbyterian Board, 9 Phila. 499. The general public usage in the city of St. Louis, proved at the trial, and from which the law infers an express or implied license, authorized the excavation of the sidewalk for basement purposes and the building of the walls.-- O'Linda v. Lothrop, 21 Pick. 292; Underwood v. Carney et al., 1 Cush. 285; Nelson v. Godfrey, 12 Ill. 22; Gridley v. City of Bloomington, 68 Ill. 47-50. And such license, having been executed by plaintiff upon its own property, is irrevocable on well-settled principles on real property law.--1 Washb. on Real Prop. (2d ed.) 82 [*84], chap. 1, sect. 58; 2 Washb. on Real Prop. (2d ed.) 417 [*401, 402], chap. 12, sects. 12, 13; Morse et al. v. Copeland et al., 2 Gray, 302; Dyer v. Sandford, 9 Metc. 395; Winter v. Brockwell, 8 East, 308. The knowledge and acquiescence of the city authorities in the prosecution of the excavation, and the action of the sewer commissioners in removing a public sewer from within the sidewalk on Sixth Street, for the purpose of facilitating the excavation thereof by plaintiff for basement purposes, and the payment by plaintiff of the expense of a new iron sewer inlet, under an agreement with the sewer commissioner, raise an estoppel in pais, which precludes both the city and the defendant corporation from asserting any rights whatever in said wall and basement, or denying that the same are the exclusive private property of plaintiff, rightfully existing under said sidewalk.--2 Dill. on Mun. Corp. (3rd ed.), sect. 675, where he cites the following cases as approving the text: Chicago, etc., R. Co. v. Elgin, 91 Ill. 251; Chicago, etc., R. Co. v. Joliet, 79 Ill. 25; Rumsey v. Clinton County, 42 Ill. 225; Logan County v. Lincoln, 81 Ill. 156; Leroy v. Springfield, 81 Ill. 114; Brooks v. Reding, 46 Ind. 15; Simplot v. Dubuque, 49 Iowa, 630; Sims v. Chattanooga, 2 Lea, 694. The permission of basements or coal vaults under sidewalks, either by express or implied license, acquiescence, or abandonment, is a legal, legitimate, and proper exercise of municipal authority.-- Lafayette v. Blood, 40 Ind. 62; 2 Dill. on Mun. Corp. (3rd ed.), sect. 699, and cases cited.

HENRY HITCHCOCK, for the respondent: Equity will not grant relief by injunction in respect of injuries which are in their nature purely contingent upon circumstances which may or may not take place.-- Flint v. Russell, 5 Dill. 151, 157; Rounsaville v. Kohlhein (Sup. Ct. Georgia, Feb., 1882), reported 15 Cent. L. J., July 14, 1882; 1 High on Inj., sects. 742, 743. The proprietor of land over which a public highway has been laid, retains his right in the soil for all purposes which are consistent with the full enjoyment of the easement acquired by the public or by any corporation by authority derived constitutionally from the legislature.-- Denniston v. Clarke, 125 Mass. 216; 2 Dill. on Mun. Corp. (3rd ed.), sects. 687, 688, 690, 698, 699; Cincinnati v. White, 6 Pet. 431. The owner of property abutting on a street takes it subject to the right of the public to use the street for all the appropriate purposes of a street, whether the fee of the street be in the municipal corporation, or in the state, or in the adjoining proprietor; for the fee in such case is held for the use of the public as a street with all of its incidents.-- City of Morrison v. Hinkson, 87 Ill. 587, 589. The street is legally open and free for the public passage, and for such other public uses as are necessary in a city, and do not prevent its use as a thoroughfare, such as the laying of water-pipes, gas-pipes, and the like.-- Barney v. Keokuk, 94 U. S. 340. In numerous cases the supreme court of Missouri has sustained the right of the legislature to grant to a railroad corporation either without reference to the municipal authorities, or mediately through the city charter, the right to lay down its tracks in the streets of a city; * * * and the provision in the Constitution of 1865, which limited this legislative right, only forbade its exercise by way of special laws.-- Porter v. Railroad Co., 33 Mo. 128; Lackland v. Railroad Co., 34 Mo. 259; Tate v. Railroad Co., 64 Mo. 150; Randle v. Pacific R. Co., 65 Mo. 325; Atlantic, etc., R. Co. v. City of St. Louis, 66 Mo. 259; Botto v. Pacific R. Co., 11 Mo. App. 589.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff is owner of a valuable building, erected for mercantile purposes at a cost of about $220,000. It is bounded on three sides by Olive, Sixth, and Locust Streets, important business thoroughfares of the city of St. Louis, and commands a rental of $40,000 per annum. On its eastern, or Sixth Street front, the sidewalk is twelve feet wide, composed of stone flags about eight inches thick, each extending across the whole width, and being supported at the curb upon a stone wall which has a depth of twelve feet, and constitutes the outer enclosure of the basement story, thus extended under the sidewalk and occupying so much of the street, below the surface. This wall is substantially constructed, as a retaining protection against the earth outside, which is of generally moist consistency, and permeated, from time to time, by watery aggregations. It is supplemented by a thin brick wall on the interior, at a few inches distance, for the better securing of dryness in the basement. The defendant corporation, in prosecuting its business of establishing telephones and telephone connections for the convenience and service of the public, has begun the work of cutting holes at two different points through the sidewalk flagging, just within the curb, for the insertion of vertical poles which are to be about fifty-two feet in length and sixteen inches thick at the base, tapering to a diameter of five inches at the top. These poles must descend into and through the retaining wall to a depth of seven or eight feet, and will occupy its whole thickness, with the exception of two or three inches on either side. Telephone wires are to be strung from pole to pole, when properly prepared. The plaintiff shows that the effects will be highly detrimental to its property and business interests; that the insertion of the poles and their vibrations afterwards will so weaken and injure the wall, that it cannot be restored to its present usefulness as a protection against the earth and moisture; that persons visiting the building daily, in number averaging about five thousand, will be seriously hindered and incommoded in the approaches, and that the rental value of the premises will be very greatly diminished. Wherefore, the plaintiff asks for a perpetual injunction against the proposed undertaking. The circuit court denied the injunction, and dismissed the plaintiff's petition.

As to many of the grounds upon which the plaintiff demands relief, they are identical with those presented in a like behalf, for the plaintiff in Gay v. Mutual Union Telegraph Company (12 Mo. App. 485). The opinion delivered in that case shows, from the highest authorities, that the dedication or condemnation of public streets in a city does not limit their use to the purpose of passways for persons and vehicles, but extends to every use which may advance the public comfort and convenience, within the legitimate sphere of municipal regulation. That the particular use proposed was not in contemplation when the dedication was made, is of no consequence. Belcher Sugar Refining Co. v. Elevator Co., 10 Mo. App. 401. The dedication covers all present and future agencies, not inconsistent with the needs of street travel, and adopted by public authority for the common benefit, whether directly, or through intermediary corporations or private persons. In short, the streets of St. Louis are as effectually dedicated to the purposes of a public telegraph system, when...