Nemours v. Hickey
| Decision Date | 08 March 1948 |
| Docket Number | 39955 |
| Parties | Alanda Nemours, Appellant, v. J. F. Hickey, T. J. Hargadon and Gus M. Biston, Individually and as Agents of Moorlands Addition |
| Court | Missouri Supreme Court |
Rehearing Denied April 12, 1948.
Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.
Affirmed.
J L. London and Frank Coffman for appellant.
(1) In violating the restrictions and covenants imposed upon the lots in Moorlands Addition, the defendants unlawfully appropriated property belonging to plaintiff. Britton v School District, etc., 328 Mo. 1185, 44 S.W.2d 33; Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024; Secs. 10, 26, Art. I, Mo. Const. 1945; Sec. 1, Fourteenth Amend., Constitution of the United States; Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545; Proetz v. Central District, etc., 191 S.W.2d 273. (2) Covenants and agreements in the deed, from the Moorland Land Company to its grantees, creates and vests in each of them as owners, a property right, an easement in and to each and every lot. Morrison v. Hess, 231 S.W. 997. (3) An easement is a property right which can only be taken for public purposes by condemnation under the power of eminent domain, after payment of just compensation. Porter v. Pryor, 164 S.W.2d 353; Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741; Sec. 10, 26, Art. I, Mo. Const. 1945; Eubanks v. Richmond, 226 U.S. 137.
Kenneth Thies, Barksdale, Abbott & Thies and Robert C. Powell for respondents.
(1) Each and every act, about which plaintiff complains, was undertaken and carried out by the City of Clayton (not these defendants) under its police powers. These acts were: Placing traffic standards on Clayton Road, Construction of actuating traffic pads in Glen Ridge, Painting traffic lines in Glen Ridge Avenue, and Establishment of "no-parking" zones around plaintiff's home. City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935; Nemours v. City of Clayton, 237 Mo.App. 497, 175 S.W.2d 60; City of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57. (2) Defendants cannot accede to plaintiff's demand to barricade and close Glen Ridge Avenue, so as to prevent the City of Clayton from operating under its police powers, because the defendants must keep the street open as a "place of passage," under the original Indenture; must manage and control said street as "heretofore" under their appointment as agents; and must observe the court's mandate in this case that, "the availablity of a street for the purpose of travel is always the paramount consideration" to which the right of an abutting owner is "necessarily permissive and subordinate." Nemours v. City of Clayton, 237 Mo.App. 497, 175 S.W.2d 60. (3) Whether the easement afforded the City of Clayton by defendants is void or valid is wholly immaterial since the City of Clayton has acted and acts under its police powers and does not rely on the easement for its authority. Nemours v. City of Clayton, 237 Mo.App. 497, 175 S.W.2d 60. (4) Injunctive relief should be denied as a protection of private rights where it conflicts with a paramount public interest. The courts should reject plaintiff's demand unless the benefit to plaintiff clearly out-weighs the inconvenience to the public. Nemours v. City of Clayton, 237 Mo.App. 497, 175 S.W.2d 60; Hog Haven Farms v. Pearcy, 328 Mo. 560, 41 S.W.2d 403; Smith v. City of Sedalia, 224 Mo. 107, 149 S.W. 597; Johnson v. United Railways, 227 Mo. 423, 127 S.W. 63; Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95; Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628; 28 Am. Jur., secs. 250, 254. (5) Loss arising from legitimate police regulations is damnum absque injuria. City of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57.
The subject matter of this suit has been the source of litigation which has several times reached the appellate courts of this State.
Appellant is the owner of a lot with her residence thereon in Moorlands Addition, a private subdivision in the City of Clayton. Respondents are agents selected by the real estate owners to carry out the provisions of an indenture regulating the control and care of the private streets within the addition.
The suit is to declare void a certain "easement" in Glen Ridge Avenue granted by respondents to the City of Clayton; to enjoin respondents from continuing to keep said avenue open to the public, and for other specified relief. The circuit court declared the easement void, denied all other relief prayed for and assessed the costs against plaintiff.
A plat of Moorlands Addition was recorded in 1923. About the same time the owner executed a lengthy indenture containing certain covenants and restrictions as to buildings, streets, etc., binding on all lot purchasers and their successors in title. It conveyed the title to all streets to three named trustees as joint tenants and vested them with certain powers among which were: to maintain the streets and sidewalks in good condition and free of obstruction so that lot owners and their families should have free access thereto as places of passage, subject to such reasonable rules as the lot owners may from time to time prescribe; and to levy assessments against lot owners to pay for maintaining the streets. The indenture provided that upon the death of the last surviving trustee the title to the streets and sidewalks should vest in the then lot owners and their successors in title as tenants in common, subject to the covenants, conditions and restrictions contained in the instrument; and that the lot owners might select agents to carry out the provisions of the indenture, as agents but not as trustees. In December, 1933, the last surviving trustee having died, respondents were selected as agents at a meeting of the lot owners.
Moorlands Addition is bounded on the north by Wydown Boulevard and on the south by Clayton Road, both heavily traveled public streets. Within the addition are three north and south private streets connecting Wydown and Clayton Road, Westwood Drive being on the west edge, Audubon Drive on the east edge and Glen Ridge Avenue in the middle of the addition. Several east and west private streets run from Westwood to Audubon, crossing Glen Ridge. A number of large apartment houses are located in the western part of the addition. In 1929 a public school was established on Glen Ridge about midway between Wydown and Clayton Road, serving pupils from within and without the addition. The rest of the addition is restricted to family residences. The population of the addition is about five thousand. In 1935 appellant bought her lot and built her residence. The lot is on the northeast corner of Clayton Road and Glen Ridge and the residence faces Clayton Road. Appellant's adult son, Dr. Nemours, resides with her.
Since 1932 during May of each year the agents close off Glen Ridge, Audubon and Westwood, alternately, for two weeks. Before that time the closing off was at irregular intervals. This is done to prevent the streets from losing their private character by continuous public user. The streets were managed in substantially the same way when appellant bought her property and at all times before and since.
In December, 1939, respondents executed an instrument reciting that a traffic hazard exists on Glen Ridge, a private street, at and near its intersection with Clayton Road, a public street; that a system of automatic traffic signals is necessary at that place and the City of Clayton has been asked to provide same. Then the instrument purports to grant the city the right to install such a system, placing the necessary cables and appurtenances in or under the southern end of Glen Ridge, and to maintain and operate the system perpetually as the property of the city.
Thereafter the city caused lines to be painted in the southern part of Glen Ridge, indicating that the street is divided into three lanes. In the center lane was placed a traffic pad connected by underground wires with signal lights in Clayton Road, so that contact with the pad signals east and west traffic in Clayton Road to stop and permit a left turn into it from Glen Ridge. The east lane was marked for right turn into Glen Ridge and the west lane for right turn into Clayton Road. The city also placed a sign on the east side of Glen Ridge one hundred fifteen feet north of Clayton Road indicating "No Parking" south of the sign. The city enacted ordinances providing for the installation of the signal system and the "No Parking" signs.
We now briefly review previous appellate decisions relating to the subject matter of this controversy.
Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935. In July, 1941, Dr. Nemours was convicted in police court for illegally parking his automobile in the "No Parking" zone on Glen Ridge. On appeal the circuit court peremptorily instructed the jury to acquit him. The St. Louis Court of Appeals reversed and remanded the case, holding that, in the interest of safety, the city was within its power in enacting ordinances to regulate traffic on a private street used by the public with permission of its owners.
Nemours v. Clayton, 237 Mo.App. 497, 175 S.W.2d 60. Mrs. Nemours and Dr. Nemours, her son, sued to enjoin the city from maintaining the signal system and traffic regulations above mentioned. They lost their suit both in the circuit court and the court of appeals. The latter court again holding the city had power to regulate traffic on private streets used by the public; that the rights of abuting owners are subject to reasonable limitation for the public good and that such limitation does not amount to an illegal taking of private property.
Hickey v. Danna, 238 Mo.App. 839, 178 S.W.2d 764. The agents of the lot...
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