Knapp, Stout & Co. Company v. City of St. Louis

• Citation: 56 S.W. 1102,156 Mo. 343
• Parties: KNAPP, STOUT & CO. COMPANY v. CITY OF ST. LOUIS et al.
• Decision Date: 15 May 1900
• Court: United States State Supreme Court of Missouri

56 S.W. 1102

156 Mo. 343

KNAPP, STOUT & CO. COMPANY v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 1.

May 15, 1900.

MUNICIPAL CORPORATIONS — VACATION OF STREETS — RIGHT OF ABUTTING PROPERTY OWNER TO OBJECT — ORDINANCE VACATING STREET — REVIEW BY COURTS.

1. One who owns land on the north side of S. street, at its junction with M. street, which ends at S. street, is not an abutting property owner, so that he can obtain injunctive relief against the vacation of a portion of M. street on the south side of S. street.

2. The courts will not review the action of a municipality in vacating a portion of a street by ordinance, in the absence of allegation of fraud.

3. The vacation of a portion of a street by a municipality at the instigation of a private corporation, that the corporation may use such vacated portion in the extension of their premises, is not such fraud as will authorize the courts to invalidate the ordinance.

Appeal from St. Louis circuit court.

Suit by the Knapp, Stout & Co. Company against the city of St. Louis and the Mallinckrodt Chemical Works for injunction to restrain the vacation of a street and obstruction thereof. From a ruling sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Lubke & Muench, for appellant. B. Schnurmacher and Chas. C. Allen, for appellee city of St. Louis. McKeighan, Barclay & Watts, for appellee Mallinckrodt Chemical Works.

ROBINSON, J.

This is a proceeding in equity begun in the circuit court of the city of St. Louis on November 7, 1896, to invalidate an ordinance passed on the 4th day of April, 1891, by the city of St. Louis, vacating a part of Main or First street between Mallinckrodt and Salisbury streets for a distance of one block, and to enjoin the defendants from interfering with said portion of said street, and to require them to remove therefrom certain improvements placed thereon since the passage and approval of the ordinance in question. The petition, omitting the formal parts, is as follows: "The plaintiff, the Knapp, Stout & Co. Company, is a corporation existing under the laws of the state of Wisconsin, and for many years last past has owned, and now still does own and possess, among other parcels of real estate in said city of St. Louis, a lot 60 feet in width, lying on the north side of Salisbury street, at a point where Main street, hereinafter named, runs into or intersects Salisbury street, so that said lot fronts also on Main street, as hereinafter mentioned, at its northern terminus. That defendant the city of St. Louis is a municipal corporation existing under the laws of Missouri; its charter having been adopted October 22, 1876, and being a public act. That defendant the Mallinckrodt Chemical Works is also a corporation duly incorporated and existing as such, and that one Edward Mallinckrodt is the president of said works, and at the time of the passage of the ordinance hereinafter mentioned, and while the same was pending before the municipal assembly of said city, the said Mallinckrodt was authorized to act for and on behalf of said Mallinckrodt Chemical Works in the matters hereinafter alleged against said works. That for many years prior to October 22, 1876, there existed, and now still exists, in said city, an open, public street or highway, of the width of about 60 feet, extending from about Dorcas street, in the southern suburbs of said city, northwardly to Salisbury street, a distance of more than 75 blocks, or about 5 miles. That said street is called `Main Street' or `First Street,' and in its course follows the meanderings of the Mississippi river, and that said street has during all said time been used by the public as an open and complete public street and highway. That the owners of the ground fronting said street constructed their buildings along the eastern and western lines of said street, treating the same as a public street, and that the defendant the city of St. Louis has during all said time, and until the happening of the grievances hereinafter complained of, used and treated said street as one continuous street, extending between the points aforesaid and the distance aforesaid. That defendant the city of St. Louis at the times hereinafter mentioned held, and now still holds, the title to said street, as a continuous street extending between the points aforesaid, in trust for the use of the public of said city of St. Louis, and especially in trust for the use of the owners of property abutting or adjoining the same, including the plaintiff, hereinbefore named, by reason of the plaintiff's ownership of said tract of ground fronting on said Main street, hereinbefore more particularly described. That heretofore the municipal assembly of defendant, the city of St. Louis, passed an ordinance, numbered 16,093, which was approved by the mayor of said city April 4, 1891, and is in words and figures as follows: `16,093. An ordinance for the vacation of First street between Mallinckrodt and Salisbury streets. Be it ordained by the municipal assembly of the city of St. Louis as follows: Section 1. First street between Mallinckrodt and Salisbury streets is hereby vacated. Approved April 4, 1891.' That by said ordinance the defendant the city of St. Louis does attempt to break the continuity of said Main street, by vacating or attempting to vacate one block thereof, extending from Mallinckrodt to Salisbury street, a distance of more than 300 feet, and a width of about 60 feet. That the ordinance aforesaid was not passed or approved for any public purpose, but was passed and approved at the instance of defendant the Mallinckrodt Chemical Works, acting therein by its president, Edward Mallinckrodt. That the defendant the Mallinckrodt Chemical Works is a private corporation, existing solely for the private gain of the shareholders thereof, and engaged in the business of manufacturing and selling chemicals and like commodities. That the sole and only purpose of said ordinance hereinbefore set out, passed and approved as aforesaid, was and is to give to said defendant the Mallinckrodt Chemical Works the exclusive use and possession of said part of Main street lying between Mallinckrodt and Salisbury streets, and to the end that said Mallinckrodt Chemical Works may increase its capacity and the profits of its shareholders. That said part of said Main street lying between Mallinckrodt and Salisbury streets, and so by said ordinance attempted to be ceded or given to said Mallinckrodt Chemical Works, would be, if private property, of the value of upwards of $20,000. That by and under color of said ordinance said Mallinckrodt Chemical Works has taken possession of said part of Main street lying between Mallinckrodt and Salisbury streets, is excluding the plaintiff and the public therefrom, and has erected permanent obstructions thereon, constituting in law a nuisance upon said highway. That the said ordinance of the municipal assembly of the defendant the city of St. Louis, numbered 16,093, hereinbefore set out, was passed by said assembly and approved by the mayor of said city without any legal warrant or authority whatsoever therefor. That the attempt to destroy said part of said Main street mentioned in said ordinance, and to devote the same to the private use of the defendant the Mallinckrodt Chemical Works, is a violation by said defendant the city of St. Louis of its duties as trustee holding the title to said street, as hereinbefore mentioned, and that the occupation and use of said part of said street by defendant the Mallinckrodt Chemical Works are wholly illegal. That the plaintiff has no adequate remedy at law, either for the recovery of damages or otherwise, to prevent or to be compensated for the injury already done them and which may hereafter accrue to them because of the attempted destruction of the continuity of said Main street, and the appropriation by defendant the Mallinckrodt Chemical Works of said part thereof, and that the damages of the plaintiff in the premises are irreparable. That plaintiff, together with certain other parties, on ...