Rubinstein v. City of Salem
| Decision Date | 06 April 1948 |
| Docket Number | 6689 |
| Citation | 210 S.W.2d 382 |
| Parties | RUBINSTEIN et al. v. CITY OF SALEM et al |
| Court | Missouri Court of Appeals |
'Not to be published in State Reports'.
E. W Bennett, Wm. P. Elmer, and L. Clark, McNeill, all of Salem for appellants.
Geo. F Addison, of Salem, for respondents.
VANDEVENTER
On the 7th day of October, 1946, the Board of Aldermen of the City of Salem passed an ordinance condemning a sidewalk on the west side of and adjoining respondents' property and ordered the city clerk to notify respondents to remove the sidewalk within ten days. The ordinance provided that if said sidewalk had not been removed by the owners within ten days from service of the notice, the city marshal should take all necessary tools and men, break up and remove the sidewalk, and report tack to the city clerk the expense of such action and the amount thereof should be assessed against respondents' adjoining property and become a lien thereon. The notice was served on respondents and, on the 21st day of October, 1946, they filed a petition in the circuit court of Dent County, alleging that they, prior to the construction of the sidewalk and the adjacent building, had explained their plans to the proper city officials, discussed the same with them, requested the issuance of the necessary authority to proceed with the construction in accordance with their plans, and that authority was granted them to proceed with the construction. That with the full knowledge of the city officials they proceeded to build a building and the sidewalk, which took several months, and that during that period on different occasions and many times the construction was viewed by the various city officials. That although having full knowledge thereof the officials made no objections or criticisms or directed stoppage of the work but acquiesced therein. That the first time respondents knew the city officials were objecting was when a copy of the ordinance, passed October 7th, was served upon them. That the destruction of the sidewalk would damage the whole of said building, which was of great value and practically completed, and asked that the City of Salem and certain officials be restrained from breaking up and removing the sidewalk. A temporary injunction was issued, which upon final hearing, was made permanent.
The ordinance above mentioned recited that the sidewalk was unsightly, not in conformity with the grade of the street, was detrimental to and interfered with the free and proper use of said street and was 'secretly' constructed without a permit as required by ordinance. Attached to the answer and pleaded therein was an ordinance dated May 11, 1908, which provided that any owner of a lot or parcel of land desiring to build a sidewalk adjoining it should first make written application 'to the street committee of the board of aldermen' for a permit to do so, giving full information as to construction, etc. If the street committee of the board of aldermen were of the opinion that the work would be a public benefit and not in violation of the provisions of the ordinance or injurious or detrimental to any property owner or other property, conformed to the established grade of the street, 'as nearly as may be,' they 'may' cause the city clerk to issue such permit.
The answer alleged that no proper permit to construct the sidewalk was obtained by respondents, that said sidewalk as built was unsightly and injurious and detrimental to other property owners, and did not conform to the established grade of the street.
The evidence on the part of the respondents (plaintiffs below) was that in March or April, 1946, respondent, Saul Rubinstein, went to the City Hall and talked to the mayor and city clerk about the construction of the building and the sidewalk adjoining it on Iron Street, which was on the west of the proposed building running north and south, that he drew a plan on the back of an envelope, explaining it to them and asked if it was necessary to get written permission and was informed, 'Well, that's all right, go ahead.'
Respondents did proceed with the excavation of the site, building the building and the adjoining sidewalk. Their building was set back one and one-half or two feet from the property line. The sidewalk was built three and one-half or four feet wide on the street and the additional one and one-half or two feet was on the property of respondents. Respondents proceeded with the construction until sometime in August or September. During that time the mayor and members of the board of aldermen frequently passed the place, sometimes riding and at other times walking, and could hardly have failed to notice the progress of the construction. Sometime near the latter part of August or first of September, when the building was nearly completed, except the windows and some finishing and the sidewalk was 90% or more constructed, someone was sent over to inform respondents that they must appear before the city council in connection with the building of the sidewalk. One of respondents did appear, bringing his blue prints with him, discussed it with them, and the council agreed to come over to the site of construction the next day to ascertain what should be done about it. The city council and mayor came over as agreed, viewed the construction and then entered into a conversation with a Mrs. Tune, apparently an adjoining property holder, about the removal of a tree interfering with a power line. The council did not tell respondents what their decision was, but went away and the next time respondents heard from the council was when the notice of the ordinance condemning the sidewalk was served upon them.
The evidence showed that the building being constructed was on sloping land. The first floor was 60 feet east and west by 82 feet north and south and the entrance was on the south end at the street level of the street running east and west. The second floor consisted of two rooms, each 20 by 60 feet and one room 42 by 60 feet and which could be entered only from the west side. If the sidewalk were built on the street level the entrance to these rooms would have been several feet above it. The first floor, when completed, would rent for $ 75 or $ 100 per month if the sidewalk could remain as built and the three rooms on the second floor would rent for approximately $ 150 per month. If the sidewalk were destroyed and respondents were compelled to make an entrance to the second floor from the first floor, which would be the only practical way to make both floors accessible, the cost of such change would be $ 6,000 or $ 7,000 and the rental of the whole building would be about $ 1200.00 per year. With such a change, the building could only be rented to one person as a single unit.
The grade on Iron Street was rather steep for a street or sidewalk. In fact, so steep that trucks going up Iron Street toward the north were compelled to go into second or low gear. Appellants had employed the County Surveyor and Highway Engineer of Dent County to survey and plat the location with reference to a sidewalk and the plat he made was introduced in evidence. With the plat were his recommendations which follow:
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