Marks v. Bettendorf's, Inc.

• Citation: 337 S.W.2d 585
• Decision Date: 05 July 1960
• Docket Number: No. 30401,ACF-W,30401
• Parties: Louise MARKS, William P. Marks, James H. Harriss, Mrs. James H. Harriss, Val W. Lammert, Mildred Lammert, Albert H. Hopmann, Edna M. Hopmann, G. E. Boller, Agnes Boller, R. B. Anderson, Ethel Anderson, Alberta H. Goldon, Lucian Erskine, Addine G. Erskine, Clayton W. McAuliff, Mabel McAuliff, Joseph F. Becker, Jr., and Alfrieda F. Becker, (Plaintiffs) Appellants, v. BETTENDORF'S, INC.,rigley Stores, Inc., The City of St. Louis, and Tide Water Realty Co., (Defendants) Respondents.
• Court: Court of Appeal of Missouri (US)

Page 585

337 S.W.2d 585

Louise MARKS, William P. Marks, James H. Harriss, Mrs. James H. Harriss, Val W. Lammert, Mildred Lammert, Albert H Hopmann, Edna M. Hopmann, G. E. Boller, Agnes Boller, R. B Anderson, Ethel Anderson, Alberta H. Goldon, Lucian Erskine Addine G. Erskine, Clayton W. McAuliff, Mabel McAuliff Joseph F. Becker, Jr., and Alfrieda F. Becker, (Plaintiffs) Appellants, v. BETTENDORF'S, INC., ACF-Wrigley Stores, Inc., The City of St. Louis, and Tide Water Realty Co., (Defendants) Respondents.

No. 30401.

St. Louis Court of Appeals, Missouri.

July 5, 1960.

Motion for Rehearing or to Transfer to Supreme Court Denied

Sept. 6, 1960.

Joseph A. Kirkwood, St. Louis, for appellants.

Barksdale, Abbott & Wallace, Clarence M. Barksdale and Robert R. Young, St. Louis, for respondent ACF-Wrigley Stores, Inc.

Thomas J. Neenan, City Counsellor, Thomas F. McGuire, Associate City Counsellor, St. Louis, for respondent City of St. Louis.

John J. Shanahan, St. Louis, for respondent Tide Water Realty Co.

WOLFE, Presiding Judge.

The opinion of the Judge to whom this case was assigned for writing failed of acceptance, and the case now comes to this writer upon reassignment.

Appellants brought this action to have a rezoning ordinance and another ordinance which vacated certain streets and alleys declared null and void and of no legal effect. Appellants sought to enjoin and restrain certain defendants from erecting any building contrary to deed restrictions and to enjoin and restrain the defendants from interfering with the free use of the streets and alleys vacated under the ordinance. The zoning ordinance reclassified a tract of land within the subdivision known as Wenzlick Park from Class 'A', a single family dwelling zone, to Class 'F', a local business zone. There was a decree in favor of the defendants on all counts, and the plaintiffs appealed.

Many of the facts were stipulated, and those about which there is no dispute are that the plaintiffs and the defendants all acquired their interest in the real estate owned by them in Wenzlick Park from a common grantor, Wenzlick and his wife. A plat and instrument containing restrictions upon the subdivision were filed and recorded by the Wenzlicks. The restrictions so filed were imposed by their terms upon all of the lots within the subdivision. One of the restrictions was that the buildings on the lots should conform to the building lines indicated on the plat recorded.

On December 7, 1956, the Board of Aldermen adopted Ordinance No. 48159 by a vote of fifteen ayes and seven noes. The ordinance changed the area from Class 'A' residential to Class 'F' commercial. The Mayor of the City failed to sign the ordinance, but returned it on January 11, 1957 to the Board of Aldermen, which was not within twenty days after it was presented to him, and consequently, under the charter, it became effective, unless declared invalid by this action.

Prior to the passage of the ordinance a petition was filed with the City of St. Louis purporting to be duly signed and acknowledged by the owners of ten percent or more of the area of land within the area determined by lines drawn parallel to and 185 feet distant from the boundary of the area which the Board of Aldermen rezoned by Ordinance No. 48159.

The plaintiffs claim that the petition invoked the operation of Section 89.060, V.A.M.S., 1949, which is as follows:

'Such regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified or repealed. In case, however, of a protest against such change duly signed and acknowledged by the owners of ten per cent or more, either of the areas of land (exclusive of streets and alleys) included in such proposed change or within an area determined by lines drawn parallel to and one hundred and eighty five feet distant from the boundaries of the district to be changed, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the legislative body of such municipality. The provisions of section 89.050 relative to public hearing and official notice shall apply equally to all changes or amendments (R.S.1939, Sec. 7416).'

The Board of Aldermen also passed Ordinance No. 48764 on March 14, vacating the streets which were within the residential part of the subdivision. Thereafter the vacated streets were curbed across at their conjunction with the streets in which they formerly ran. The adjoining property not rezoned by Ordinance 48159 was also owned by defendant ACF-Wrigley Stores, Inc., and consisted of property fronting on Chipewa Street, which had long been zoned as a local business district.

As to the validity of the ordinance vacating the streets, this court was in full accord, and we adopt the statement of the writer of the opinion that otherwise failed of concurrence. It is as follows:

'It is claimed by them (plaintiffs) that they have an easement in the property which abuts the vacates streets by reason of the building line restriction and have an easement by grant and by implication over the platted streets and alleys, in that, they have a special interest in maintaining the public use to which they are dedicated. Because of these easements, which they claim are interests in real estate, they contend that they come within the category of 'owners of all property specially damaged' as set out in Sec. 14 of Article XXI of the Charter of the City of St. Louis. Therefore, it is plaintiffs' position that, not having signed the petition for the vacation of the streets and alleys, Ordinance No. 48764 is void. The section of the Charter of the City of St. Louis referred to provides as follows:

"Nothing herein shall limit the power of the city by ordinance recommended by the board of public service to acquire property by private purchase, or to vacate any highway, street, boulevard, parkway, or alley without proceeding hereunder when the owners of all property specially damaged petition therefor and waive all damages.'

'In discussing this contention of plaintiffs it should be noted that no part of the real estate owned by the plaintiffs abuts on the streets and alleys vacated by said ordinance. The plaintiffs who testified stated that the vacation of the said streets and alleys did not deprive them of reasonable access to the general system of streets of the City of St. Louis.

'Plaintiffs assert that the words 'owners of all property' are all inclusive words descriptive of the holders of most any interest in real estate. We think the words as used in the Charter provision refer to the owners of the fee of the real estate and this is particularly true when the owner has to be one 'specially damaged.'

'In the case of Arcadia Realty Co. v. City of St. Louis, 326 Mo. 273, 30 S.W.2d 995, l. c. 997, the Supreme Court said:

"* * * In order for a property owner to sustain an injury special or peculiar to him on account of the vacation of a street, his property or some part of it must abut on the vacated portion, or else the vacation must deprive him of reasonable access to the general system of streets.'

'We have shown that plaintiffs were not deprived of reasonable access to the general system of streets by the vacation of said streets and alleys. Obviously, the property owner referred to in the Arcadia Realty Co. case, supra, was the owner of the fee.

'The effect of the vacation of said streets and alleys was to restore to the owners of the land fronting on each side thereof the title thereto out to the middle of said streets and alleys freed from the easement which the City had therein for public use prior to the passage of the vacation ordinance. Campbell v. City of Glendale, Mo.App., 211 S.W.2d 519.

'Certainly, the Charter provision did not contemplate the holders of all manner of easements to come within the words 'owners of all property.' To hold that all holders of easements come within the meaning of the words would be to include the holders of utility easements, which we are certain was never intended when consideration is given to the purpose of the Charter provision, namely, the authority to vacate streets and alleys. What we have said applies not only to the claimed easement by reason of the building line restriction, but to the alleged easement by grant and by implication over the platted streets and alleys. In connection with this latter claim we will show later that plaintiffs have no right in the platted streets and alleys different from those possessed by the general public in the general system of streets and alleys in the City of St. Louis. Plaintiffs, not having suffered damage differing in kind from that suffered by the general public, are not specially damaged within the meaning of the law. Bailey v. Culver, 84 Mo. 531; Christy v. Chicago B. & Q. R. Co., 240 Mo.App. 632, 212 S.W.2d 476; American Law of Property, Vol. 11, p. 497. We hold that it was unnecessary for plaintiffs to sign the petition requesting vacation of the questioned streets and alleys. So far as the record is concerned the petition was sufficient to authorize the passage of Ordinance No. 48764 by the Board of Aldermen of the City of St. Louis.

'Plaintiffs attack the validity of this ordinance in another respect. Ordinance No. 45113 of the City of St. Louis requires the Director of Streets and Sewers of said City to post one or more signs 'within or adjacent to the area to be vacated' stating that a bill is pending before the Board of Aldermen to vacate the streets and alleys described in said bill. The ordinance further provides that the Director of Streets and Sewers shall notify the Clerk of the Board of Aldermen of the posting of the signs and thereafter, said Clerk, 'shall file such notice with the committee of the board of aldermen to which the bill was referred.' No time is specified in the ordinance when the notice is to be posted. Obviously, it should be posted within such time as to give...