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

Decision Date31 October 1885
Citation88 Mo. 258
PartiesTHE JULIA BUILDING ASSOCIATION, Appellant, v. THE BELL TELEPHONE COMPANY.
CourtMissouri Supreme Court

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Madill & Ralston for appellant.

(1) The plaintiff is the owner in fee of the western half of Sixth street between Olive and Locust streets. Newhall v. Ireson, 8 Cush. 595; Nichols v. Suncork Mfg. Co., 34 N. H. 345; Adams v. Railroad, 33 Barb. 414; Hannibal Bridge Co. v. Schaubacker, 57 Mo. 582; Higbee v. Railroad, 19 N. J. 276; Paul v. Carver, 26 Pa. St. 224. (2) The right of the city in Sixth street was a mere easement, the ownership of the fee being in plaintiff and the evidence shows that the walls placed therein, the sidewalk thereon and the area or basement enclosed thereby are exclusively the private property of the plaintiff, rightfully and lawfully there. (3) If said wall and basement are the private property of the plaintiff, then it follows that neither the state nor the city of St. Louis nor the defendant corporation has any rights therein for any telegraph or telephone purposes whatsoever and that no such rights as are claimed by defendant can lawfully be acquired without proper condemnation proceedings. Williams v. Road Co., 21 Mo. 580; Cape, etc., v. Renfroe, 58 Mo. 265; Craig v. Rochester, etc., 39 N. Y. 404; Broadwell v. City of Kansas, 75 Mo. 213; State v. Laverack, 34 N. J. L. 201; Higbee v. Railroad, 19 N. J. 116. (4) The erection and maintenance of the two telephone poles complained of will obstruct the free and convenient access to plaintiff's premises for purposes of business and otherwise, as formerly enjoyed, as well as impair the use and enjoyment of the premises, as a place of business, weaken and impair the walls thereof, and depreciate their market and rental value to a very large extent. Under this state of facts, the latest and best considered cases hold, under the constitutional provisions declaring “that private property shall not be taken or damaged for public use without just compensation,” and under laws requiring compensation to be made where lands are “injuriously affected,” (construed as equivalent to “damaged”) by the construction or execution of public improvements, that compensation ought to be, and must be, made. Const. of Mo., art. 2, sec. 21; City of Pekin v. Brereton, 67 Ill. 477; Chicago & Pacific Railroad Co. v. Francis, 70 Ill. 238; Borough of New Brighton v. United Presb. Church, 96 Pa. St. 331; Hendrick's Appeal, 103 Pa. St. 358; City of Denver v. Bayer, 7 Col. 113; Beckett v. Railroad, L. R. 3 C. P. 82; Caledonian Ry. Co. v. Walker's Trustees, 7 L. R. Appeal Case, 259; Rigney v. Chicago, 102 Ill. 64; Transportation Co. v. Chicago, 99 U. S. 642; Chicago, etc., v. Stein, 75 Ill. 41; Householder v. Kansas City, 83 Mo. 488; Dusenberry v. Telegraph Co., 30 Hun, 480; Tiffany v. U. S., etc., 67 How. Pr. 73; Reardon v. City, etc., 5 West Coast Rep. 758. (5) The court improperly admitted in evidence ordinance number 10,691, offered by defendant for the purpose of showing that the excavation of the sidewalk and the building of said walls were unauthorized and illegal, because no written permission of the street commissioner was shown by plaintiff as required by said ordinance. (6) The defendant corporation is a mere private corporation, not subserving any public use, in any proper or legal sense of the term, which has encroached and still encroaches on the public streets and highways of St. Louis without any warrant of law whatever, and which encroachments on the said streets constitute a common nuisance, abatable and indictable at common law and under the statute. (7) Even if it be held that the defendant corporation has the statutory right to erect its poles on Sixth street, yet it proposes not only to remove the wall of plaintiff's basement, but also to put and permanently maintain its poles therein without paying any compensation. The proposed acts of the defendant corporation will amount to both a “taking” and “damage” of private property within the meaning of the constitution and laws of Missouri, as, we submit, has already been shown. In such cases an injunction will always issue, regardless of the amount of damage. McElroy v. City of Kansas, 21 Fed. Rep. 257; Mason v. The Harpers Ferry Bridge Co., 17 West Va. 396; The St. Louis Railroad Co. v. The Northwestern St. Louis Ry. Co., 69 Mo. 65; Railroad Co. v. Owings, 15 Md. 199.

Henry Hitchcock for respondent.

(1) This is not a case for an injunction. When an injury complained of is of obstruction to a street, it must affirmatively appear that such obstruction causes or will cause real and substantial injury. 1 High. on Inj., sec. 824; Gay v. Mut. Tel. Co., 12 Mo. App. 485; Ibid. 494; Bigelow v. Hartford, etc., 14 Conn. 565; Hamilton v. New York, 9 Paige, 171. (2) But even if the poles did constitute an obstruction to public travel the plaintiff could not rely thereon for two reasons. ( a) Because such injury would not be peculiar to plaintiff, if plaintiff were a natural person, but would be sustained by it in common with the public generally. 1 High. on Inj., sec. 762; Illinois, etc., v. St. Louis, 2 Dil. 90; Werth v. Springfield, 78 Mo. 107; Rigney v. Chicago, 107 Ill. 64. ( b) Because plaintiff is not a natural person, but an invisible, intangible corporation, and in the nature of things cannot walk the streets nor be obstructed in so doing by a telephone pole. (3) 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 Dil. 151; Rounsoville v. Kohlein, 15 Cent. Law Jour.; 1 High. on Inj., secs. 742 and 743. (4) Even if the apprehended injuries are not contingent and if they could occur the plaintiff would have a sufficient remedy for them at law. 1 High. on Inj., sec. 740; Wood on Nuisances, secs. 799, 801, 812, 816, et seq. (5) A marked distinction exists between the extent and nature of the public uses or servitudes, to which land dedicated for a street in a populous city thereby becomes subject, and those uses or servitudes to which a country road or a village highway or street becomes subject as such. Angell on Highways, sec. 312; Thompson on Highways (Mills 3 Ed.) chap. 2, sec. 1; Cincinnati v. White, 6 Pet. 432; People v. Kerr, 27 N. Y. 201; 2 Dil. on Mun. Corp. (3 Ed.) secs. 688, 698. (6) The dedication leaves in the abutting owner 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 Dillon on Mun. Corp. (3 Ed.) secs. 678, 687; City of Morrison v. Hinkson, 87 Ill. 587; Barney v. Keokuk, 94 U. S. 340; Transportation Co. v. Chicago, 99 U. S. 640. (7) The street can be applied to any use reasonably incident to the public street, as such. Cases last cited, supra; also, People v. Kerr, 27 N. Y. 202-3; 50 N. Y. 206; 62 N. Y. 390. (8) Respondent is not, as appellant contends, merely a private corporation subserving no public use and, therefore, guilty of a nuisance in encroaching on the public streets.

NORTON, J.

This case is before us on plaintiff's appeal from the judgment of the St. Louis court of appeals affirming the judgment of the circuit court of the city of St. Louis, in dismissing plaintiff's bill, invoking the injunctive powers of the court to restrain and enjoin defendant from erecting and maintaining telephone poles and wires at two points on Sixth street between Locust and Olive streets in said city. The grounds for the relief sought and asked for by plaintiff, as stated in the petition, are substantially that plaintiff is the owner of a lot of ground, abutting and fronting on Sixth street in the city of St. Louis, the entire length of said street between Olive and Locust streets in said city, on which it had erected a building four stories high, used as a retail store for the sale of general, and staple and fancy merchandise; that said building above the surface of the ground extends to within about twelve feet of the curb stone of said street, and below the surface the basement story of said building extends to the line of the curb stone of said street, and is used for storing, exhibiting, packing and marking merchandise, and must be so used in order to utilise said building for the purposes for which it was built; that plaintiff, with full right and express permission of the municipal authorities of the city, did in the construction of said building, build at great cost, a heavy stone wall laid in cement, as the outer and exterior wall of the basement of said building, the outer line of said wall being Sixth street; and also built at great cost a brick wall, just inside and a few inches from said exterior stone wall; and that plaintiff, by permission of the city authorities, laid a little above the level of said street large slabs of stone about twelve feet long and several feet wide, one end of which rested on said wall, and extended back to said building, which said slabs constituted a pavement along said Sixth street and also a covering or roof for a considerable portion of said basement, and are essential to its protection. It is also averred in the petition that defendants without any authority are engaged in cutting holes through said slabs of stone, and intend to remove parts of said stone wall, and place through said holes being cut, and down in the vacancies or holes to be made in said stone wall large timbers or poles to extend many feet above said slabs of stone, to be retained permanently, and on which are to be stretched a large number of wires to be used for telephonic purposes; that said acts, if permitted to be done, will be a continuing nuisance and constitute a continuing danger to life and property connected with said building, and the business carried on therein, and to persons and...

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