Meyers v. City of St. Louis

• Decision Date: 27 January 1880
• Citation: 8 Mo.App. 266
• Parties: JOHN Q. MEYERS, Respondent, v. CITY OF ST. LOUIS, Appellant.
• Court: Missouri Court of Appeals

8 Mo.App. 266

JOHN Q. MEYERS, Respondent,

v.CITY OF ST. LOUIS, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 27, 1880.

1. A riparian owner on a navigable stream owns to the water's edge, has the right of access to the river over his land, to make a landing subject to the rights of navigation, and to the use of the water in its natural flow, which rights cannot be wrested from him for the public use without just compensation.

2. A municipal corporation which projects a dike into a navigable stream, by which the water is diverted from the front of the riparian owner's land, is liable to him for the damage occasioned thereby.

3. If the river was diverted by the city of St. Louis to make a new wharf-line, it is made liable by the express provision of the charter of 1874.

APPEAL from the St. Louis Circuit Court.

Affirmed.

LEVERETT BELL, for the appellant: A municipal corporation, in the absence of negligence, is not answerable in a civil action for consequential damages arising from the execution of a public work which it is authorized by the State to engage in.-- St. Louis v. Gurno, 12 Mo. 414; Schattner v. Kansas City, 53 Mo. 165; Imler v. Springfield, 55 Mo. 125. The city is not liable for damage caused by the erection of the dike in question.-- Barney v. Keokuk, 94 U. S. 324; Pound v. Turck, 95 U. S. 459; Gilman v. Philadelphia, 3 Wall. 713; Stephens v. Railroad Co., 34 N. J. L. 280; Thayer v. Railroad Co., 125 Mass. 253; Zimmerman v. Canal Co., 1 Watts & S. 346; Radcliff v. Mayor, 4 Comst. 195; Northern Co., v. Chicago, U. S. Sup. Ct., delivered March 3, 1879.

MYERS & ARNSTEIN, for the respondent: The plaintiff, as a riparian owner on the Mississippi River, had the right of exclusive access to and from his lot, to and from the navigable waters of the river, and the right to have the river flow by his land as it flowed by nature. That right was property, within the protection of the constitutional provision which prohibits the taking of private property for public use without compensation.-- Lyon v. Fishmongers' Co., L. R. 1 H. L. Cas. 662; Delaplaine v. Railroad Co., 42 Wis. 214; Yates v. Milwaukee, 10 Wall. 504; Avery v. Fox, 1 Abb. (U. S.) 246; Cooley's Const. Lim. 557; Bowman v. Wathen, 2 McLean, 376; Chapman v. Railroad Co., 33 Wis. 629; Ryan v. Brown, 18 Mich. 196; Duke of Buccleuch v. Metropolitan Board, L. R. 5 H. L. Cas. 418; Metropolitan Board v. McCarthy, L. R. 7 H. L. Cas. 243; Commissioners v. Kempshall, 26 Wend. 404; Gardner v. Newburgh, 2 Johns. Ch. 162; Clark v. Peckham, 10 R. I. 35; Tyler v. Wilkinson, 4 Mason, 397; Railroad Co. v. Schurmeier, 7 Wall. 289; Harrison v. Sterrett, 4 Har. & M. 540; Tinicum Fishing Co. v. Carter, 61 Pa. 21; Ten Eyck v. Canal Co., 18 N. J. L. 200; Railroad Co. v. Chase, 43 Md. 23; Providence Co. v. Providence, etc., Co., 9 Cent. L. J. 409; Thompson v. River Co. (Sup. Ct. N. H.), 19 Alb. L. J. 117; Dutton v. Strong, 1 Black, 23; Musser v. Hershey, 42 Iowa, 356; Arimond v. Canal Co., 31 Wis. 316; Stetson v. Faxon, 19 Pick. 147; Rhodes v. Cleveland, 10 Ohio, 159; McCombs v. Akron, 15 Ohio, 474; 18 Ohio, 229. The plaintiff owned at least to the water's edge, if not to lowwater mark. The original grant from the State called for the river as the eastern boundary, and plaintiff's title followed the river when thrown east by the dike. He was entitled to the accretions. The State could set up no intervening title, nor do anything to derogate from or impair its grant.-- Clement v. Burns, 43 N. H. 609-617; O'Fallon v. Daggett, 4 Mo. 343; Smith v. Public Schools, 30 Mo. 290; Schools v. Risley, 10 Wall. 110; Houck on Rivers, sect. 168 et seq.; Kraut v. Crawford, 18 Iowa, 549; Lockwood v. Railroad Co., 37 Conn. 387; Jones v. Soulard, 24 How. 51; LeBeau v. Gavin, 37 Mo. 556; Public Schools v. Risley's Heirs, 40 Mo. 356; Benson v. Morrow, 61 Mo. 345. The mud deposit created by the city between the bluff bank and the water's edge, as located after the building of the dike, was therefore on plaintiff's land, and was itself a “taking” of plaintiff's property. Anything which permanently destroys or impairs the use is, pro tanto, a “taking.”-- Eaton v. Boston, 51 N. H. 511; Baron v. Mayor, 2 Am. Jur. 203; Lackland v. Railroad Co., 31 Mo. 181; The People v. Canal Appraisers, 13 Wend. 392; Pumpelly v. Green Bay Co., 13 Wall. 166; Bell v. Hull, 6 Mee. & W. 699, and authorities cited under first point. It was a condemnation for a “wharf,” and would justify nothing but a “wharf.” Property taken by right of eminent domain can be used only for the purpose for which it is taken. The public acquires nothing but an easement--the right to use for a particular purpose.-- Norton v. Railroad Co., 39 L. T. (N. S.) 25; s. c. 18 Alb. L. J. 267; Adams v. Rivers, 11 Barb. 390; Lance's Appeal, 55 Pa. St. 16; Cooley's Const. Lim. 545, 548, 551, and cases there cited.

GLOVER & SHEPLEY, for the respondent: A riparian owner upon a public river has a property right in the stream, being the benefit to him of the use of the water and shore as a landing, or shipping-place, or wharf of his own, should he see fit to construct one; and no person can with impunity destroy, encroach upon, or impair (against his will) this riparian property.--1 Dill. on Mun. Corp., sects. 70-72; Yates v. Milwaukee, 10 Wall. 497; Railroad Co. v. Schurmeier, 6 Wall. 272; Dutton v. Strong, 1 Black, 25; Natoma, etc., v. McCoy et al., 23 Cal. 490; Newhall v. Iveson et al., 8 Cush. 595; Cowley v. Kidder, 24 N. H. 364; Clement v. Burns, 43 N. H. 609; Wadsworth v. Tillotson, 15 Conn. 366, 373; Thurman v. Morrison, 14 B. Mon. 367. By the common law, the right of the riparian owner in the soil extends to the middle line of the stream of a non-public river. The United States Supreme Court decided that it extended to the middle line of the Mississippi River.-- Jones v. Soulard, 24 How. 65; Benson v. Morrow, 61 Mo. 345. In every case of encroachment upon the soil of the riparian owner, or diversion of the flow of his water, if the person who thus interferes will not employ the means of appropriating the property by condemnation, and compensation to the owner, the riparian owner may have his action for damages.-- Stein v. Burden, 24 Ala. 130; Cogswell v. Essex, etc., 6 Pick. 94; Piersall v. Post, 22 Wend. 425; Gates v. Blinco, 2 Dana, 158. Whatever partially destroys or diminishes the right of the riparian owner is a taking of it, in the meaning of the Constitution, and for every such injury the owner is entitled to compensation.-- Glover v. Powell, 10 N. J. Eq. 211, 229; Hooker v. New Haven, etc., 15 Conn. 312; Denslow v. New Haven, etc., 16 Conn. 98; The People v. Canal, etc., 13 Wend. 355; Walker v. Board, etc., 16 Ohio, 340; Ang. on Watercourses (6th ed.), sect. 541. When power is given by statute to take private property for public use, the power must be strictly pursued.-- Newark v. Elmer, 9 N. J. Eq. 754; Renwick v. Morris, 3 Hill, 621; Hogg v. Zanesville, Wright, 130; Ellis v. Railroad Co., 51 Mo. 200; Cunningham v. Railroad Co., 61 Mo. 33. The building of the dike in question was not an exercise of any power conferred by the charter.-- Knox v. Challoner, 42 Me. 150; Spooner v. McConnell, 1 McLean, 352; Works v. Junction R. Co., 5 McLean, 426; Columbus, etc., v. Curtenius et al., 6 McLean, 209; Williams v. Beardsley, 2 Cart. 591; Packet Co. v. Bridge Assn., 38 Ill. 467.

BAKEWELL, J., delivered the opinion of the court.

The petition alleges that defendant, as a municipal corporation created under the laws of Missouri, had charge of the duty of improving the streets and wharves of the city of St. Louis; that plaintiff, for the purpose of carrying on his steam saw-mill business, had acquired, and, at the time of the grievances complained of, owned a leasehold. The lot is described as fronting one hundred and sixty-two feet on the Mississippi River, bounded west by Second Street and south by Bryan Street. The lease was for a term of ten years from January 1, 1870, with the right to remove the improvements. Plaintiff had erected a steam saw-mill and other valuable improvements on the lot, connected with the mill business. He alleges that the term, at the time of the injury complained of, was worth $30,000, and that the lease was obtained and the buildings erected because the depth of water and nature of the ground enabled plaintiff to land large rafts of timber in front of his lot; that the natural channel of the Mississippi was in front of plaintiff's lot, and that this was essential to keep up a sufficient depth in front of his lot to enable rafts of timber to land there, so that they might be, at slight cost, conveyed to the mill; that the foot of Bryan Street is but a few hundred feet from the saw-mill, and that that street runs east to the river, on the south side of plaintiff's lot; that in July and August, 1874, defendant unlawfully caused a dike twenty feet broad by seven hundred feet long to be built across the channel of the river from the bed to the surface, extending from the foot of Bryan Street, which diverted the river from its natural channel and threw it many hundred yards to the east, causing the formation of a deposit of mud along the entire front of plaintiff's premises six feet deep and a hundred feet wide, and making the water so shallow that during the continuance of the lease it will be impossible to land timber in front of the premises; that there is no other way of getting timber to the saw-mill, and that the obstruction and diversion of the river has entirely destroyed the value of the lease; that at the time this dike was built, plaintiff had heavy timber, worth $10,000, in rafts landed in front of his premises, and belonging to him, and apparatus by which the same would have been hauled; and that, in consequence of the dike, this timber sank in the mud and could not be extricated, and was wholly lost. Plaintiff asks damages in the sum of $40,000.

Defendant states in its answer that it is a municipal...