Appeal from St. Louis circuit court.
Bill by Knapp, Stout & Co. against the city of St. Louis and another. From a judgment sustaining a demurrer and dismissing the bill, plaintiff appeals. Affirmed.
On the 9th of November, 1896, the plaintiff, a Wisconsin corporation, filed the following petition in the St. Louis circuit court:
"The above-named plaintiff brings this suit on behalf of itself and all other persons, owners of property fronting on Main street, hereinafter mentioned, who may see fit to join as plaintiffs herein; and, complaining of the defendants above named, said plaintiff says:
"That 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 last charter having been adopted October 22, 1876, and being a public act. That defendant the St. Louis Stamping Company is also a corporation, duly incorporated, and existing as such, and that on the 17th day of February, 1891, one F. G. Neidringhaus was the president of said defendant the St. Louis Stamping Company, and was authorized to act for and on its behalf in the matters hereinafter alleged against said defendant the St. Louis Stamping Company. 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 grievance hereinafter complained of, used and treated said street as one continuous street, extending between the points and the distance aforesaid. The defendant the city of St. Louis at the times hereinbefore 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 mentioned, 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 16,094, which was approved by the mayor of said city April 4, 1891, and is in words and figures as follows:
"`(16,094)
"`An ordinance vacating certain streets and
alleys in the district between Angelrodt
street and Destrehan street, and between
Hall street and the center line of Broadway
"`Be it ordained by the municipal assembly of the city of St. Louis, as follows:
"`Section 1. First street between Angelrodt street and Destrehan street, is hereby vacated; also the alley through city blocks eleven hundred and ninety-nine and twelve hundred, and that portion of the alley in city block twelve hundred and one situated north of a line one hundred and forty feet distant northwardly from and parallel to the north line of Angelrodt street; also that portion of Broadway laid out in Angelrodt division situated north of a line one hundred and forty feet north of Angelrodt street and east of a line ten feet eastwardly from and parallel to the west face of the eastern curb set along Broadway west of block ten of said Angelrodt division.
"`Sec. 2. The mayor of the city of St. Louis is hereby authorized to convey the strips of land described in section one to the owners of the abutting property, provided that they will within thirty days after the passage of this
ordinance dedicate to public use forever: First, an alley fifteen feet wide, extending from Broadway eastwardly one hundred and thirty-five feet to the alley, and the north line of which said new alley is to be one hundred and forty feet northwardly from and parallel to the north line of Angelrodt street; and, second, a strip of land extending from Destrehan street southwardly two hundred and eight feet, to Angelrodt's division, bounded westwardly by a line ten feet eastwardly from and parallel to the west face of the eastern curbstone on Broadway between Destrehan street and Angelrodt street, and east by block ten of Destrehan's division as represented upon the plat of Bremen.
"`Sec. 3. The owners of the property in the northern and eastern part are furthermore required to give a bond in the penal sum of five hundred dollars within thirty days after the passage of this ordinance to insure the grading and paving of the alley in block twelve hundred and one, to be dedicated to public use under the provisions of section two of this ordinance to the satisfaction of the board of public improvements.
"`Approved April 4, 1891.'
"That by section 1 of said ordinance 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 Angelrodt street to Destrehan street, a width of 60 feet, and a distance of more than 300 feet. That the ordinance aforesaid was not passed nor approved for any public purpose, but was passed and approved at the instance of defendant the St. Louis Stamping Company, acting therein by its president, Frederick G. Neidringhaus, in pursuance of a letter written by said Neidringhaus, addressed to the municipal assembly of said city, dated February 17, 1891; being in words and figures as follows: `St. Louis, Mo., February 17, 1891. Hon. C. P. Walbridge, President City Council — Dear Sir: To satisfy any doubt on the matter, we wish to give your honorable body the assurance, in case our bill for the vacation of part of Main street is passed, our contemplated tin-plate works will be built on the property. Yours, truly, F. G. Neidringhaus, President.' That defendant the St. Louis Stamping Company is a private corporation, existing solely for the private gain of the shareholders thereof, and engaged in the business of manufacturing and selling granite ware, tin plate, and other 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 St. Louis Stamping Company the exclusive use and possession of said part of said Main street lying between Angelrodt and Destrehan streets, and to the end that said St. Louis Stamping Company may increase its business capacity and the profits of its shareholders. That said part of Main street lying between Angelrodt and Destrehan streets, and so by said ordinance attempted to be ceded or given to said St. Louis Stamping Company, would be, if private property, of the value of upwards of $20,000. That by and under color of said ordinance said St. Louis Stamping Company has, since the passage and approval of said ordinance, taken possession of said part of Main street lying between Angelrodt and Destrehan streets, and has excluded this plaintiff and the public therefrom, and has erected permanent constructions thereon, constituting in law a nuisance upon said highway. That the said ordinance of the municipal assembly of defendant the city of St. Louis numbered 16,094, 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 obstruct said part of said Main street mentioned in said ordinance, and to devote the same to the...
