Schopp v. The City of St. Louis
| Decision Date | 19 June 1893 |
| Citation | 22 S.W. 898,117 Mo. 131 |
| Parties | Schopp v. The City of St. Louis, et al., Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. J. E. Withrow Judge.
Affirmed.
W. C Marshall for appellant.
(1) The circuit court erred in excluding the ordinance provisions set up in the answer. (2) The judgment of the circuit court on the facts in evidence should have been for defendants. The evidence discloses that so far as the plaintiffs are concerned, the city had not for two years prior to the institution of this suit rented out any stands to hucksters in front of plaintiff's property. The plaintiffs testified that wagons did stand in front of their places of business, but they never showed in any manner whatever although counsel during the progress of the case intimated that he would so show, that such persons stood there by any authority from the city. This case, therefore, must be determined upon the right of any citizen without any special interest, to maintain an injunction to prevent the city from establishing such a produce exchange on the street, or to require the city to keep all of the streets wholly unobstructed, and not allow any vehicles to stand on the street any longer than is necessary to deliver and receive goods. The ordinance makes a wise and beneficent muncipal regulation, enuring, unquestionably, to the benefit of the people of the city, and without which competition would be stified, and a few persons would be enabled to put up the price of necessary culinary articles.
Thomas B. Harvey for respondents.
(1) The authority conferred upon the city of St. Louis, "to regulate the use of" its streets, contemplates only such uses as are consistent with the purpose for which the streets were dedicated, and uses to which they may be properly applied as such; and the ordinance provisions authorizing the renting of permanent wagon stands on said streets are unconstitutional and void. Constitution of Missouri, art. 2, secs. 20 and 21; 1 Dillon on Municipal Corporations, sec. 383; 2 Dillon on Municipal Corporations, secs. 587b, 680, 683, 697 and 730, and citations; Angell on Highways, secs. 223 and 226; Tiedeman's Limitations Police Power, p. 312; Thurston v. St. Joseph, 51 Mo. 517; Sugar Ref. Co. v. Elevator Co., 82 Mo. 127, and citations; Glasgow v. St. Louis, 87 Mo. 678; Building Association v. Tel. Co., 88 Mo. 258; Cummings v. St. Louis, 90 Mo. 264 and 265 and citations; Callanan v. Gilman, 107 N.Y. 360; William v. Railroad, 16 N.Y. 97; People ex rel. v. Mayor, 59 Howard, 277; McCaffrey v. Smith, 41 Hun 117; Turner v. Holtzman, 54 Md. 148; State v. Laverack, 34 N. J. Law, 202; Wartman v. City, 33 Pa. St. 202; Rex v. Cross, 3 Camp. 224; Knox v. Mayor, 55 Barb. 404; Wilder v. DeCou, 26 Minn. 10; Green v. Oakes, 17 Ill. 249; Craig v. People, 47 Ill. 487. (2) And if the city of St. Louis had the authority to rent out or let wagons stand upon the public streets, it could not lawfully so exercise that authority as to create a public nuisance. 2 Dillon Municipal Corporations, sec. 660; State v. Turner, 21 Mo.App. 324; State v. Gilbert, 73 Mo. 20; State v. Ramsey, 76 Mo. 398; Edmundson v. Moberly, 98 Mo. 523; Glessner v. Brewing Ass'n, 100 Mo. 508.
The city of St. Louis, by an ordinance enacted in due form of law, set apart that portion of Third and Broadway streets between Christy avenue and Howard street, as a market "for farmers and other wagons bringing produce to market for sale;" and by ordinance gave the comptroller power to lease stands on and along that portion of the streets to such vendors of produce. The comptroller gave public notice that he would on a given date lease the stands for one year from the first of April, 1890; and thereupon the plaintiffs brought this suit to enjoin the defendants from leasing stands in front of their property. The court awarded a perpetual injunction as prayed for and the defendants appealed.
The evidence discloses the following further facts: Third and Broadway constitute one continuous street. The plaintiff, Conrad Schopp, owns a parcel of land with a building thereon fronting twenty feet on the west side of Third street, and the plaintiffs Lewedag & Co., are his tenants. The plaintiff, Jacob Schopp, owns another parcel with buildings thereon fronting on the east side of Third street, occupied by the plaintiffs, the Jacob Schopp & Brother Fruit and Produce Company, a corporation organized under the laws of this state. These tenants are engaged in the business of buying and selling, at wholesale and retail, fruits, vegetables and other garden produce. They carry on a large business. The street in front of their buildings is from fifty-five to sixty feet wide, and has become a crowded thoroughfare for wagons and loaded vehicles because of cable railroads and the grades on adjacent streets. For four years prior to the commencement of this suit, the city had annually leased to hucksters spaces in front of the property owned and occupied by the plaintiffs, about ten feet wide and extending from the curb out into the street a distance of fifteen or seventeen feet. Spaces of ten to twenty feet wide were left between the spaces so leased. The hucksters and others leasing the spaces come in on all week-days before daylight, and back their wagons in on the leased spaces up against the curb. They stand on the sidewalk and sell their produce from their wagons. As a rule, they remain until eight or nine o'clock in the forenoon, but it appears they often remain until three o'clock in the afternoon. The proof is clear to the effect that these market wagons materially interfere with the business carried on by the plaintiffs, by causing the street to become blockaded; and they render it difficult and often impossible for the plaintiffs to get their wagons up to the curb in front of their houses. Parts of these streets between Christy avenue and Howard street have been used for such market purposes since 1861, and perhaps longer, but the street in front of the buildings owned and occupied by the plaintiffs was not so used until four years before the commencement of this suit.
An abutting property-owner has the same right to the use of the street that the public have, and, in addition thereto he has rights which are special to himself, as the right of ingress and egress, and this right is a property right which he may protect. Ferrenbach v. Turner, 86 Mo. 416; Glaessner v. Brewing Ass'n, 100 Mo. 508, 13 S.W 707. An obstruction in a street or highway may be both a public and a private nuisance, and in such cases the private citizen who is specially injured may have injunctive relief. Glaessner v. Brewing Ass'n, supra; McDonald v. Newark, 42 N.J.Eq. 136, 7 A. 855; Elliott on Roads and Streets, 496. That the plaintiffs...
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