Kingshighway Supply Co. v. Banner Iron Works

• Decision Date: 02 December 1915
• Docket Number: No. 17536.,17536.
• Citation: 181 S.W. 30,266 Mo. 138
• Parties: KINGSHIGHWAY SUPPLY CO. et al. v. BANNER IRON WORKS et al.
• Court: Missouri Supreme Court

181 S.W. 30

266 Mo. 138

KINGSHIGHWAY SUPPLY CO. et al. v. BANNER IRON WORKS et al.

No. 17536.

Supreme Court of Missouri, Division No. 1.

December 2, 1915.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Bill by the Kingshighway Supply Company and another against the Banner Iron Works and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions to dismiss the bill.

The plaintiff brought this suit in the circuit court of the city of St. Louis, the owner of certain real estate situate in city block No. 4095, fronting on Kingshighway, and the Union Sand & Material Company, its lessee, against the Banner Iron Works and Ernest C. F. Koken, trustee, also owners of property in said city block 4095, and the city of St. Louis, to secure a decree nullifying an ordinance of said city, known as Ordinance No. 26203, vacating a portion of the north and south alley which runs partly through said block. The trial resulted in a decree in favor of the plaintiff adjudging the ordinance void, and enjoined the defendants from closing the alley, and commanding them to remove all obstructions they may have placed therein. From this judgment the defendants properly appealed the cause to this court. The facts of the case are very well stated by counsel for respondent, in the following language:

"All of the properties of the parties hereto are located in city block 4095. It came down from the common grantor, Henry Shaw. The property of plaintiffs was sold by Henry Shaw to Edwin Berger in 1854; the plat thereof showing its subdivision into lots was recorded in 1855. The property of defendants in the same city block was sold by Henry Shaw to Francis Cooney in 1842, and the same was platted, and a strip on Shaw avenue and the alley involved in this suit was dedicated to the public forever in 1872. This was while the property lay outside of the limits of the city of St. Louis. The north line of Shaw's grant to Berger, which is now the property of plaintiffs, was the south line of Shaw's grant to Cooney, which is now the property of defendants. The alley in question extends from Shaw avenue south to this line, abutting the north line of plaintiffs' property, about 192 feet east of the east line of Kingshighway, and 170 feet west of the west line of the St. Louis & Oak Hill Railroad. This alley is the only rear outlet to plaintiffs' property, which has an undisputed value of $30,000. This alley was used as a means of egress and approach to the rear portion of plaintiffs' land for a period of over 25 years, and at times has been the only means of egress and approach to plaintiffs' property with wagons and teams. Ordinance No. 26203 was designed to close that portion of the alley abutting plaintiffs' property and to turn the same over to defendants herein.

"The plaintiffs allege in their petition that the vacation of the alley upon which their property abuts serves no public purpose; that it was passed solely for the benefit of the Banner Iron Works; that it takes away plaintiffs' only means of egress and approach to the rear portion of defendants' property; that the rights acquired by the plaintiffs established a special easement in said alley through the grant in the original dedication, which cannot lawfully be taken away from them by the city of St. Louis in the manner in which this ordinance was passed; that the attempted passage of this ordinance deprives plaintiffs of their private rights to use this alley without any compensation; that the passage of this ordinance conditioned upon the payment of $200 by the defendant is the attempted sale of public property and plaintiffs' private rights therein to private individuals; that the closing of this alley would do the plaintiffs an irreparable injury for which they have no adequate remedy at law; that the ordinance is unjust, oppressive, and unreasonable, and in contravention to plaintiffs' constitutional rights.

"The answer, after a general denial, admits the dedication of the alley in question for public use and the filing of the survey and plat in the recorder of deeds' office in the county of St. Louis, admits the passage of the ordinance, and admits the payment by defendants of the consideration therein named of $200, and pleads that upon the payment of said $200 thereby said alley had been duly vacated. There is no affirmative plea that the plaintiffs were not abutting property owners to that portion of the alley closed."

One of the disputed facts is that the respondents' property abuts upon the alley proposed to be vacated. The following plat will throw much light upon the questions involved:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Schnurmacher & Rassieur, of St. Louis, for appellants. John L. Corley, of St. Louis, for respondents.

WOODSON, J. (after stating the facts as above).

I. From the statement of the case it will be seen that the questions of fact and law presented by this record are embraced in a very narrow compass, and that the determination of the question of fact as to whether or not the property of respondents fronts on the alley practically disposes of the proposition of law here presented for adjudication.

Barring all constitutional questions, it goes without saying that the city of St. Louis, under its charter, had the power and authority to enact...