Odell v. Pile
| Citation | 260 S.W.2d 521 |
| Decision Date | 14 September 1953 |
| Docket Number | No. 43386,No. 1,43386,1 |
| Parties | ODELL et al. v. PILE et al |
| Court | United States State Supreme Court of Missouri |
Herbert F. Butterfield, Ralph H. Duggins, Robert L. Rasse, Marshall, for appellants.
Otha Rawlings, Robert L. Hoy, Marshall, for respondents.
LOZIER, Commissioner.
Plaintiffs (as individuals and as representatives of resident taxpayers and property owners similarly situated) sought to restrain Saline County (and the judges of, and a commissioner appointed by, the county court) and the City of Marshall, the county seat, from 'assuming possession or control of any part or portion * * * of the Public Square and from running any street through or over the same and from doing or permitting any act or acts which will interfere with the use of said land as a public square, or with the enjoyment of the same by the plaintiffs or the public at large.' In Count II, plaintiffs asked cancellation of the county's grant of the easement hereinafter described. The trial court found for defendants on both counts. Plaintiffs appealed from the ensuing judgment. As a county is a party, the appeal is properly here. Section 3, Art. V, Mo. Const., 2 V.A.M.S., p. 31; Platte River Drainage Dist. No. 1 of Buchanan County v. Andrew County, Mo.Sup., 278 S.W. 387.
The basic issue is whether the use of a 24' strip around the Square, contiguous to the four streets and 'rounded' at the corners, 'for street purposes' constitutes a diversion or misuser of property dedicated to courthouse square purposes. The Square is a part of land conveyed to the county in fee simple and selected as the 'site for the permanent seat of justice' of that county in 1839. See Laws of Missouri, 1838-1839, p. 150. Thereafter, the commissioner (appointed by the county court to locate a 320' 'Square Proper' bounded by 70' streets and to sell 100 lots as platted) filed a plat entitled 'Map of the Town of Marshall.' The 'Public Square' was an (unnumbered) block in a platted (and numbered) block-and-lot area. Outside the platted blocks were 'Commons'--33' wide on the notrh, 40' on the east, and 273' on the south. The area on the west was unmarked. (The 'Commons' areas were platted, sold and improved many years ago.) North Street was north of the 'Public Square,' Arrow Rock (now Arrow) south, Lafayette west and Jefferson east, all 70' wide. The commissioner sold lots, including those opposite the Square, by deeds in which the lots were identified and described by reference to the map. Thereafter, the courthouse was built in the middle of the 'Public Square' block. In 1898, city ordinances established the width of the streets around the Square at 50'.
It was stipulated that, by scale, the 'Public Square' block on the map was 320', not 300', square; that actually the block is approximately 332' square; and that approximately 6' of the present 12' outer sidewalk is on this 332' square block. Plaintiffs' evidence was that, prior to the time the city 'rounded' the corners and paved the streets in 1898 or 1899, there was an iron fence (apparently preceded by a wood fence) around the Square, 'just inside this present wide (12' outer) walk'; outside that fence was a walk, and next to that walk, an iron pipe or chain hitchrack. There was a 'watering trough' on the east side. (Apparently, long prior to 1899, a substantial portion of the 24' strip now proposed to be used for parking motor vehicles was used 'for street purposes,' viz., parking of the transportation units of the times--saddle horses, mules, oxen and animal-drawn vehicles.) In pre-automobile days, access to the Square and the courthouse was restricted to openings in the fence--restrictions which, in restrospect, appear justified by Nineteeth Century circumstances. In 1898 or 1899, access to and within the Square was facilitated by the removal of the fence, sidewalk and hitching rack and the installation of the present outer sidewalk by the county court.
The parties agree that the Square 'has been and is devoted to public uses and purposes as a courthouse and public square; grasses, trees and shubbery were planted and sidewalks, monuments and benches constructed thereon, at various times in the past, and presently are located thereon.' Today, there is a 12' concrete outer sidewalk next to the curbs and a 15' concrete sidewalk between the courthouse and each of the four streets; on the east is a semicircle drive (used for deliveries of coal and supplies to the courthouse) with both entrance and exit on Jefferson Street. On the north are a World War I memorial monument and a flagpole. Drinking fountains are in two corners and a stone Santa Fe Trail marker in another. Embedded in the sidewalk are iron benches (none are on the lawn) which are often used by the public. There are approximately 46 trees. Other than a few shrubs near the marker, all of the shrubbery is around the courthouse itself. The parties agree that the city 'has in the past and is presently maintaining street light poles and fire hydrants on the sidewalk area of the streets abutting on said Square and all exterior lights on the courthouse are paid for by the' city, and that the city 'has regulated and is now regulating traffic on the streets abutting' the Square.
The Square area is used primarily by persons having business in the courthouse, such as plaintiff Sharp, a doctor with business interests, and plaintiff Swisher, an abstracter. In earlier days, when benches were on the lawn, it was used by the public in connection with street fairs and 'fall festivals,' for recreation and small family picnics. But today there are keep-off-the-grass signs and the lawn is seldom used. According to plaintiff Swisher, its use now is only by overflow crowds attending large public meetings, public speakings, public auctions, sales in partition or under deeds of trust or by college students in connection with parades around the Square. Plaintiff Sharp (whose office is in his building opposite the Square) had not seen a 'family picnic' in the Square since the city acquired its park in 1937 or 1938. However, the public uses the sidewalks and benches extensively.
The present traffic-parking situation on the 50' streets around that Square: Counter-clockwise one-way traffic in a 12' 'through' lane between two 18' angle-parking areas. The plan proposed: After widening the streets to 74' (i. e. to include the 24' strip), one-way traffic as at present in a 14' through lane between two 11' 'maneuvering' areas and two 19' angle-parking areas. There would be a loss of parking space for 16 vehicles next to the Square. (A Chamber of Commerce lot, one block north of the Square, would be made available for the off-street parking of approximately 70 vehicles.) Pedestrian crosswalks would be provided in the middle of each block. A 5' outer sidewalk would be installed around the Square next to the curbs.
It was not controverted that the city's regulation of traffic around the Square presents serious problems. Plaintiff Sharp admitted that there was a 'traffic problem' but doubted if the plan would solve it. Mrs. Klinge, plaintiffs' witness, 'realized that it's very congested,' but did 'not think the plan would help.' J. Leo Hayob, mayor and for four years chairman of the council's street and alley committee, testified that the city officials sought advice from the officials of other cities and from the state highway department; that the council considered a 12' and an 18' widening, but finally decided that the 24' widening--making possible the 14' through lane, the two 11' maneuvering lanes and the pedestrian crosswalks--was the best plan for eliminating traffic congestion, for more effective parking and for pedestrian safety. This view was corroborated by defendants' expert witnesses. State highway department traffic engineers stated that the traffic around the Square was 'unusually heavy'; that cars entering or leaving the parking spaces slow down or stop through traffic, diminishing the through lane's capacity; that under the plan the movement of emergency vehicles (fire-fighting, ambulance, police) would be expedited. Those witnesses recommended the plan as the best solution of the problem. The director of Kansas City's traffic department said that the 14' through lane would provide for an uninterrupted flow of through traffic and, in his opinion, was 'the best safety measure so far as the city and county are concerned.'
The city enacted ordinances for the 24' widening and for the grading, paving, curbing and guttering the streets. The notices were duly published. The city's records did not show the filing of any protest within the time specified but some informal protests were thereafter made to the council. Plaintiff Sharp, owner of a building at North and Lafayette, testified that the plan would cause an increase in his per-front-foot assessments for future street improvements.
By its commissioner's deed dated March 25, 1952, the county granted to the city 'an easement for street purposes' in the 24' strip. The city officials and the county court had had several conferences. County Judge Pyle testified that 'the court gave consideration and study to the proposal and weighed its effects'; that 'for the purpose of correcting the traffic conditions' and, upon the advice of the prosecuting attorney that they 'were within their rights,' the court granted the easement; the court considered and weighed protests but 'relied on its own judgment.' County Judge Wilson said that the court considered the statements of the city's representatives and the state highway department's traffic studies and made their (the county judges') own observations; that, with knowledge of the problem and that the county would...
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