Myers v. City of St. Louis

• Decision Date: 30 April 1884
• Parties: MYERS v. THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

82 Mo. 367

MYERS

v.THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Leverett Bell for appellant.

The damages complained of by plaintiff are not within the protection of section 16, article 1 of the constitution of 1865, which provided “that no private property ought to be taken or applied to public use without just compensation.” It is not sufficient to sustain the judgment below to show that the property of the plaintiff was damaged for public use. St. Louis v. Gurno, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Schattner v. Kansas City, 53 Mo. 165; Wegman v. Jefferson City, 61 Mo. 55; Foster v. St. Louis, 71 Mo. 157; Swineford v. Franklin Co., 73 Mo. 279; Broadwell v. Kansas City, 75 Mo. 213; Transportation Co. v. Chicago, 9 Otto 635; Radcliff v. Mayor, 4 Com. (N. Y.) 195; Mayor v. Willison, 50 Md. 138; Gould v. Railroad Co., 6 N. Y. 522; Tomlin v. Railroad Co.,32 Ia. 106; Burney v. Keokuk, 94 U. S. 324; Weeks on Damnum Absque Injuria, § 8. By the constitution of 1875, which went into effect November 30th, 1875, and subsequent to the injuries complained of by plaintiff, property damaged as well as property taken, is brought within the protection of the law. Const. 1875, art. 2, § 21. The change made by the present constitution has a direct bearing on the question here presented. Atlanta v. Green, 67 Ga. 386; Elgin v. Eaton, 83 Ill. 536; Chicago v. Rumsey, 87 Ill. 348; Reading v. Althouse, 93 Pa. St. 400; Pusey v. Allegheny, 98 Pa. St. 523; Lycoming v. Moyer, 99 Pa. St. 615; Transportation Co. v. Chicago, 9 Otto 635. The eastern boundary of the corporation of St. Louis extends to the middle of the main channel of the Mississippi River. Jones v. Soulard, 65 U. S. 41; Schools v. Risley, 77 U. S. 91. The proprietor of land on the Mississippi River only owns to the water's edge, ( Benson v. Morrow, 61 Mo. 345,) and the plaintiff acquired no interest in front of the premises occupied by him. His right to navigate the river up to his premises was one to be enjoyed with all mankind. It was not private property within the meaning of the constitution of 1865, article 1, section 16. Thayer v. Railroad Co., 125 Mass. 254; Gould v. Railroad Co., 6 N. Y. 522; Tomlin v. Railroad Co., 32 Ia. 106, Under the leases to plaintiff, he possessed no riparian rights. It is apparent from the description in it that Front street intervened between the lot in question and the river. Where granted premises are bounded in terms by a public road which separates them from the water, they extend only to the center of the road, and the grantee is not a riparian proprietor. Gould on Waters, 276, 288; Banks v. Ogden, 2 Wall. 57; Saulet v. Shepherd, 4 Wall. 502; People v. Colgate, 67 N. Y. 512; Allegheny City v. Morehead, 80 Pa. St. 118; Allen v. Munn, 55 Ill. 486. The damages are flagrantly excessive; the jury awarded plaintiff the enormous sum of $35,000 as damages to a leasehold estate having but five years to run, he fee simple value of which did not exceed $10,000.

Glover & Shepley for 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 Dillon Munic. Corp. §§ 70, 72; Yates v. Milwaukee, 10 Wall. 497. The question is, not whether the public also have rights, but whether riparian owner has rights. Railroad v. Schurmeier, 7 Wall. 272; Dutton v. Strong, 1 Black 25; Natoma, etc. v. McCoy, 23 Cal. 490; Newhall v. Iveson, 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. Angell on Watercourses (6 Ed.) 741, section 553, says the banks of navigable rivers in Missouri are public highways owned by private persons, though subject to a reasonable and temporary use by the public. O'Fallon v. Daggett, 4 Mo. 343. The distinction between public rivers and rivers not public is immaterial to this case. 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. But whether it extends to the margin or middle line of the river in this case, or not, the riparian owner has specific and absolute rights, which cannot be taken from him arbitrarily. Among these rights are, “access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use, or for the use of the public.” Yates v. Milwaukee, supra; Piersall v. Post, 22 Wend. 425. The plaintiff's ownership in the use of the shore and stream being property, it could not be taken from him without just compensation. Cons. Mo. 1875, Art. 1, § 16. That the plaintiff was entitled to compensation before his property could be taken is provided for by the city charter. Rev. City Ord. 1871, p. 70, Art. 3, § 8. 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 this 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; Angell on Watercourses (6 Ed.), § 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 (Ohio) 130; Knox v. Challoner, 42 Me. 150; Ellis v. Railroad Co., 51 Mo. 200; Cunningham v. Railroad Co., 61 Mo. 33. The building of the dyke in question was not an exercise of any power conferred by the Charter. Power to open, improve, or repair a wharf or river-harbor is no authority to build a dyke into and across the channel of the river. There is no power in the city to create a nuisance or impair the navigation. The first step to be taken by the defendant to establish a wharf on plaintiff's property was to pay him for it; the second was to comply strictly with its power to improve the wharf, taking care not to obstruct navigation. Knox v. Challoner, 42 Me. 150; Renwick v. Morris, 7 Hill 575; Hogg v. Zanesville, 5 Ohio, 410; Spooner v. McConnell, 1 McLean 352; Works v. Junction R. Co., 5 McLean 426; Columbus v. Curtenius, 6 McLean 209; Williams v. Beardsley, 2 Cart. 591; Ill. River, etc., v. Peoria Bridge, 38 Ill. 467.

Myers & Arnstein also for 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; Baron & Craig v. Mayor and City Council of Baltimore, 2 Am. Jur. 203; Cooley's Const. Lim., 557; Bowman v. Wathen, 2 McLean 376, 383; Chapman v. Railroad Co., 33 Wis. 629; People v. Canal Appraisers, 13 Wend. 355, 371; Ryan v. Brown, 18 Mich 196, 211; Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. Cas. 418; Metropolitan Board of Works v. McCarthy, L. R. 7 H. L. Cas. 243. The dyke was not a mere temporary inconvenience, but a permanent structure, which worked the absolute destruction of plaintiff's property. The plaintiff owned at least to the water's edge, if not to low-water 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 dyke. 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. St. Louis Public Schools, 30 Mo. 290; Schools v. Risley, 10 Wall. 110; Houck on Rivers, § 168, et seq; Kraut v. Crawford, 18 Ia. 549; Baltimore & Ohio R. R. Co. v. Chase, 43 Md. 23; Lockwood v. Railroad Co., 37 Conn. 387; Jones v. Soulard, 24 How. 51; LeBeau v. Gavin, 37 Mo. 556; Public Schools v. Risley, 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 dyke, 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. Railroad Co., 51 N. H. 511; Baron & Craig v. Mayor and City Council of Baltimore, 2 Am. Jur. 203; Lackland v. Railroad Co., 31 Mo. 181; People v. Canal Appraisers, 13 Wend. 392; Pumpelly v. Green Bay Co., 13 Wall. 166; Bell v. Hull & S. R. Co., 6 Mee. & W. 699, and authorities cited under first point. The legislature could not authorize the city to take plaintiff's property without compensation to him. Article 1, section 16 of the constitution prohibited it. The legislature did not assume to authorize...