Sheedy v. Union Press Brick Works

• Decision Date: 19 April 1887
• Citation: 25 Mo.App. 527
• Parties: DANIEL SHEEDY, Respondent, v. UNION PRESS BRICK WORKS, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 527

DANIEL SHEEDY, Respondent, v. UNION PRESS BRICK WORKS, Appellant.

Court of Appeals of Missouri, St. Louis.

April 19, 1887

APPEAL from the St. Louis Circuit Court, W. H. HORNER, Judge.

Reversed and remanded.

S. M BRECKINRIDGE and M. F. WATTS, for the appellant: The demurrer to the evidence should have been sustained as to the second count; the allegations of the second count did not state facts sufficient to constitute a cause of action. Powell v. Bunger, 91 Ind. 64; Matlock v. Hawkins, 92 Ind. 225; Shabut v. Railroad, 21 Minn. 502; Bailey v. Culver, 12 Mo.App. 176; Kinealy v Railroad, 69 Mo. 658; Crooks v. Pitcher, 61 Md 510. The mere dedication of a street, without some municipal act of acceptance, or public user, does not constitute the street a public highway. Skrainka v. Oertel, 14 Mo.App. 474; Pierce v. Chamberlain, 82 Mo. 618.

NAPTON & FROST, for the respondent: The second count states facts sufficient to constitute a cause of action. Trustees of Watertown v. Cowen, 4 Paige Chy. 510; 1 High on Injunctions, sect. 855; Rutherford v. Taylor, 38 Mo. 315; Skrainka v. Oertel, 14 Mo.App. 480; 43 Iowa 636; 33 Ga. 801. There were dedication and public user of Grove street, and no evidence offered to contradict either, which would justify instruction number six, offered by defendant. City of Hannibal v. Draper; 2 Dillon Mun. Corp., sects. 638, 640, 642, and notes.

OPINION

THOMPSON J.

The plaintiff is the owner of a lot fronting westwardly on Grove street, in the city of St. Louis, and extending back to a depth of ninety feet; upon the lot is a small brick dwelling house, containing two rooms and an attic, which is the residence of himself and family; the defendant is a corporation, engaged in the manufacture of brick; its property, upon which its sheds and works are erected, lies immediately to the south of, and adjoining, the lot of the plaintiff; upon the ground of the defendant, which lies immediately south of the plaintiff's lot, a shed had, long prior to the commencement of this action, been erected, and maintained, by the defendant, for its purposes; the rain-water, which fell upon that part of the roof of this shed which sloped toward the plaintiff's lot, was conducted away by a wooden gutter, erected and maintained by the defendant; the shed did not stop at the eastern margin of Grove street, but was extended entirely across that street, which was a street of fifty feet in width, so as to totally obstruct any egress for wheeled vehicles southward from the plaintiff's lot, on that street, though the evidence tended to show that there was a foot-way through the shed to the south, which, prior to the commencement of this action, the plaintiff had been permitted to use. Grove street had been platted and dedicated to the public as far south as Switzer street; beyond that, toward the south, it had not been dedicated or opened, and Switzer street was impassable from the point of the intersection of Grove street, both east and west. Prior to the bringing of this action, the country, in that vicinity, was, for the most part, open prairie. Grove street had never been improved as a street or highway; the conformation of the ground was such that it could not have been used as a street south of where the defendant's works obstructed it; persons, attempting to use it, could not find a passage, without going upon private ground. This was shown by evidence, which was substantially uncontradicted, and, to avoid the necessity of the defendant calling further witnesses upon that point, the plaintiff's counsel admitted that, " for practical purposes it was impassable, without further work upon it." Upon, substantially, these facts, the plaintiff brought the present action for damages against the defendant. His petition contains two counts: the first demands damages for casting rain-water, from the defendant's sheds, upon his land; the second demands damages for the special injury which he has sustained, from the act of the defendant, in obstructing Grove street to the south of the plaintiff's property, whereby the plaintiff, in going to the south, has been obliged to take a circuitous route. A trial before a jury resulted in a verdict and judgment for the plaintiff in the sum of one hundred dollars on the first count, and two hundred and fifty dollars on the second count. From this judgment the defendant prosecutes this appeal.

I. The second count states a good cause of action. A land owner having a right of egress in a given direction, by way of a public street, may have an injunction to restrain the closing of the street, on the theory that, by being driven to take a circuitous route to reach a place or object in that direction, he suffers what the law terms special damage. Glasgow v. City of St. Louis...