Naylor v. City of Harrisonville
| Decision Date | 27 November 1907 |
| Parties | E. E. NAYLOR et al. v. CITY OF HARRISONVILLE et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. W. L. Jarrott, Judge.
Reversed (with directions).
C. W Sloan, C. W. Hight and John A. Davis for appellants.
(1) When the officers of a city do some act evidencing an intention to assume jurisdiction or control over a street or public highway, then the obligation of the city arises, and it must keep same in proper and safe condition for travel or respond in damages for injuries sustained thereon. Conner v. Nevada, 188 Mo. 160; Ely v. St. Louis, 181 Mo. 723; Downend v. Kansas City, 156 Mo. 68; Baldwin v. Springfield, 141 Mo. 205; Bachman v St. Louis, 121 Mo. 536; Johnson v. St. Joseph, 96 Mo.App. 699; O'Malley v. Lexington, 99 Mo.App. 700; Stealey v. Kansas City, 179 Mo. 407 approving O'Malley case, supra. In the case at bar the city had assumed control, both for vehicles and pedestrians; and the actual possession and long use of the public highway or alley in controversy, as shown by the evidence, was sufficient to show a vested right in the city, without any formal dedication at common law. Maus v. Springfield, 101 Mo. 613; Meniers v. St. Louis, 130 Mo. 284; McGinnis v. St. Louis, 157 Mo. 197; Longworth v. Sedevic, 165 Mo. 221; Railroad v. Railroad, 190 Mo. 253. (2) This street is not an "alley," as the term is used to express a narrow way set apart, first, for the use of abutting property, the second, for the use of the public. Bailey v. Culver, 12 Mo.App. 183; Corby v. Railroad, 150 Mo. 457. (3) The city had the right and authority to assess the parts set out in petition as the smallest subdivision abutting on the way in controversy. Sparks v. Clark, 57 Mo. 58; Roth v. Gabbert, 123 Mo. 30; Weaver v. Grant, 39 Iowa 296. (4) It is now too late for plaintiffs to urge -- as they do in their bill for injunction -- that the acts of the Legislature authorizing cities of the fourth class to compel the building of sidewalks is unconstitutional. The courts have uniformly upheld said acts. Farrar v. St. Louis, 80 Mo. 379; State ex rel. v. Kansas City, 89 Mo. 34; Estes v. Owens, 90 Mo. 113; Dennison v. Kansas City, 95 Mo. 430; St. Joseph v. Owen, 110 Mo. 445; Clinton to use v. Henry Co., 115 Mo. 565; Moberly v. Hogan, 131 Mo. 23; Morrison v. Morey, 146 Mo. 564; Kansas City v. Bacon, 147 Mo. 282; Barber A. P. Co. v. French, 158 Mo. 538; Meier v. St. Louis, 180 Mo. 408.
James S. Brierly and Allen Glenn for respondents.
(1) No power is given to cities to take the streets or alleys or other highways without compensation. Secs. 21 and 30, art. 2, Constitution; Zoeller v. Kellogg, 4 Mo.App. 163; St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. 466; DeGofrey v. Merchants' Bridge & Ry. Co., 179 Mo. 701; McCormick v. Patchin, 53 Mo. 33; Shively v. Lankford, 174 Mo. 549. (2) Obstructions preventing the free use of the alley is damaging, as contemplated in Constitution aforesaid. Spencer v. Railroad, 120 Mo. 154; Lockwood v. Railroad, 122 Mo. 86; Lumber Co. v. Railroad, 129 Mo. 455. (3) Streets are held by the public authorities in public trust, primarily for the free and common use of the whole traveling public, and secondarily for the benefit of the owners of abutting property to afford access to their property; while the alleys are held in trust for the special and particular benefit of the property in the block which abuts the alley and are intended to afford rear accesses to said property. Corby v. Railroad, 150 Mo. 468; St. Louis v. Juppier, 16 Mo.App. 557. (4) There is a distinction between a street and its uses, and an alley and its uses, and the right of the abutting owner in each. DeGeofrey v. Railroad, 179 Mo. 698; Brownell v. Fuller, 60 Neb. 558; 2 Am. and Eng. Ency. Law (2 Ed.), 149; 1 Words and Phrases, p. 341; Beeche v. People, 38 Mich. 291; In re Woolery, 95 N.Y. 140; Paul v. Detroit, 32 Mich. 108; Bagley v. People, 43 Mich. 355; Horton v. Williams, 99 Mich. 427; Praigg v. Supply Co., 143 Ind. 358; Winston v. Johnson, 42 Minn. 398; Face v. Iona, 90 Mich. 104; Dodge v. Harte, 113 Iowa 685; Gaynor v. Bauer, 144 Ala. 448; Hickok v. Plattsburg, 41 Barb. 130; Van Whitten v. Gutman, 24 L. R. A. 405; Hunter v. Watson, 111 Mo. 177; Corby v. Railroad, 150 Mo. 468.
This suit was instituted in the circuit court of Cass county by the plaintiffs, seeking to enjoin the defendants from the construction of a concrete sidewalk, four feet in width, along a nameless street, avenue, alley or public highway, on the west side of blocks 220 and 217, in the city of Harrisonville, a city of the fourth class.
There was a trial before the court, and the findings and decree were for plaintiffs, permanently enjoining the defendants from constructing the walk. In due time and in proper manner the defendants appealed the cause to this court.
The facts are few and undisputed, and are as follows:
A copy of a plat bearing the heading, "Plat of the City of Harrisonville," and recorded in the recorder's office of that county, was introduced in evidence, and shows that the land upon which the city is built is laid out into squares, numbered from one to two hundred and thirty-six inclusive, and average in size about two hundred feet square; these squares face in four directions upon open spaces or strips of ground, unnamed, which vary in width, and run north and south and east and west through the entire length and breadth of the city, thereby giving the plat the appearance of a plat of a townsite, laid out into streets and blocks; but there are no statements appearing upon the face of the plat which show that the squares are blocks or that the spaces or strips of ground are streets. There are, however, various marginal notations on the plat explaining the plat, which refer to the squares and spaces as blocks and streets. The witnesses also refer to these squares and spaces as blocks and streets or alleys, and we will hereafter refer to them in the same manner.
There are twelve streets running north and south, and the same number running east and west. The two streets running north and south and the two running east and west through the center of the city are forty feet in width, while all the balance of them are only fifteen feet wide. The record discloses the names of but five or six streets in the entire city.
The witnesses refer to the four broad streets as "streets" in contradistinction to the narrow ones, which they call "alleys;" but the plat shows no alley running through any of the blocks in the entire city.
The pleadings and oral testimony also show that comparatively all of the blocks which appear upon the plat have been subdivided into lots, and have been sold to various persons, who have constructed houses and made other improvements thereon, and that they occupy them as homes, and use all the streets in the ordinary manner in going to and departing from their homes; and the record discloses no other means of access thereto.
The exact time when this plat was filed does not definitely appear, but it was sometime between the years 1869 and 1880. These streets have been constantly used by the public as streets ever since the plat was filed; and the street proposed to be improved, and for the prevention of which this suit was brought, was accepted by the city on or before the year 1880, and it had a board sidewalk laid along same and in front of blocks 217 and 220, the property of plaintiff. That walk is still there and has been used by the public ever since its construction. The walk now proposed to be constructed is to replace that old board walk.
The public school is located near the southeast corner of the city, and one block south of the south end of the property of plaintiff. There is no way for the school children to reach the school and for the public generally to reach their homes and the various portions of the city except by traveling over the streets indicated upon the plat.
First. They contend that all of the fifteen feet, or narrow streets in the city, which includes the one upon which the walk in question is proposed to be constructed, are alleys and not streets belonging to the public, but are private ways belonging to the adjacent property-owners, and cannot be taken or damaged for public use without just compensation first having been paid therefor.
Second. That under the charter of cities of the fourth class, Harrisonville has no power or authority to have sidewalks constructed along an alley of the city.
Third. That the city has no authority to make such improvements and assess the costs thereof against the abutting property without first giving the property-owners a hearing, and after it is ascertained that the property would be benefited by the improvements.
We will dispose of the legal propositions thus presented in the order mentioned.
Section 21 of article 2 of the Constitution of 1875 provides " that private property shall not be taken or damaged for public use without just compensation."
Under this provision of the Constitution it cannot be gainsaid that if the street or alley in question is not a public street or alley, but is private property belonging to the adjoining property-owners, then the city has no power to take or damage the same without first paying just compensation therefor; but if, upon the other hand, it is a public street belonging to the city, then the power of the city to have it improved, we presume, will not be questioned. So, this brings us to the vital question presented by this record, and that is, is the street which is proposed to be improved public or...
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