Stapenhorst v. City of St. Louis
| Decision Date | 09 April 1921 |
| Citation | 229 S.W. 754,287 Mo. 285 |
| Parties | ARNOLD STAPENHORST et al., Appellants, v. CITY OF ST. LOUIS |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon Charles B. Davis Judge.
Affirmed.
Joseph Reilly for appellant.
(1) The "waiver" is void. (a) Because it attempts to permit the damage of private property for public use, contrary to the Constitution of Missouri, Article 2, Section 21. (b) Because there is no consideration mentioned therein to support the promise of the grantor in the deed of dedication to waive the contemplated damages. Hudson v Browning, 264 Mo. 58; Bailey v. Austrian, 19 Minn. 535; Crane v. Crane & Co., 105 F. 869; Riegart v. Coal Co., 217 Mo. 142. (c) Because it does not define and specify what is meant by all "claims for damages." Hudson v. Browning, 264 Mo. 58. (d) Because it empowers the defendant city to arbitrarily and despotically change the level of the street without restriction or limitation either as to the depths to which it might lower the street or to the heights it might elevate the street. Under the provisions of the "waiver" the city could lower the street to below the level of the bottom of the Dead Sea, or raise it to the cloud line. (e) Because there is no mutuality of promise. The city does not promise to make the street or to change the grade. It might make the street on the natural level of the surface of the ground or it might grade it as it pleased. There is nothing in the waiver to indicate what was in the minds of the parties. One party might have had the intention of making a great ditch in the street, while the other might have believed that the city would scratch the surface of the hills and throw a little earth on the street in the valleys. It is most probable that neither party at the time thought that any portion of this street would be dug down seven feet below the natural surface of the street, as was done in front of the plaintiffs' property, to their great damage. The deed of dedication was recorded June 25, 1909, the work done on the street was done in the year 1916, seven years after. Cold Blast Trans Co. v. Kansas City Bolt & Nut Co., 114 F. 77; 40 Cyc. 259. "Before a waiver can be valid the parties sought to be bound thereby must have a full knowledge of all the facts appertaining to the thing waived." At the time of the execution of the "waiver" neither party had any knowledge of any of the facts, because they were not in existence at the time of its execution. A fact means something done, an act. There was nothing done at the time, so how could they have knowledge of something which was not only not executed, but not even in the minds or contemplation of either of the parties? (f) Because it is against public policy. (g) Because the damages waived is coextensive only with the land dedicated, to-wit, the streets and alleys, as shown by the agreement of Alice B. Von Versen, the holder of the deed of trust on the land wherein she releases her rights under the mortgage to the land embraced in the streets and alleys. The "waiver" is void as to her. If the damage had accrued to her interests under the mortgage on the land she was not barred from her action for damages. The city knew that she had rights in all the property covered by the mortgage. It took the precaution to have her release as to the land embraced by the streets and alleys, but she was not joined in the waiver for damages. And she was a necessary party. The owner of the land could not make such an agreement without the holder of the deed of trust being a party thereto. If the "waiver" is void as to one it is void as to all, because it says, "All claims for damages." It would not cover possible or probable or certain damages to her, therefore it is void ab initio as to all. (h) Because it is ultra vires. (2) The "waiver" is a mere license, and was revoked by the grantor in the deed of dedication, when she sold the land covered and affected by the "waiver." Black's Law Dictionary; 25 Cyc. 640, 650. (3) The "waiver" is void because it is meaningless, ambiguous, indefinite and uncertain. McGuire v. Wilson, 187 S.W. 612; Delmar Inv. Co. v. Lewis, 196 S.W. 1137; Brick and Const. Co. v. Gentry County, 257 Mo. 392; Barber Asphalt Co. v. O'Brien, 128 Mo.App. 267; Coulter v. Brick & Const. Co., 131 Mo.App. 230; City of Poplar Bluff v. Bacon, 144 Mo.App. 476; Webb v. Aylor, 163 Mo.App. 476; Custer v. Springfield, 167 Mo.App. 354; Schulte v. Currey, 173 Mo.App. 578.
Chas. H. Daues, Oliver Senti and H. A. Milton for respondent.
(1) The waiver of damages for the grading of Beacon Avenue is not in violation of Article 2, Section 21, of the Constitution of Missouri. The Legislature and courts of this State have declared that municipalities may and in some cases must secure a waiver of damages before changing the grades of their streets. R. S. 1909, secs. 9828, 9044, 9050; Sec. 5665, R. S. 1899; McQuarter v. St. Joseph, 134 Mo.App. 645. (2) Appellants' predecessor in interest, the dedicator, received a good and valuable consideration for the rights that she waived. This consideration was the approval of her plat by the city and the advantages resulting to her therefrom. These advantages were: First: The right to have the map or plat recorded, which could not be done without the city's approval. Old Charter, Art. 6, sec. 1. Second: The right to sell or offer for sale the lots in the subdivision which could not be done without incurring a penalty of $ 300 for each lot sold or offered for sale, until the approval by the City through its Board of Public Improvements, permitting the recording of the plat. Sec. 8959, R. S. 1909. Third: The advantage of having the lots in the subdivision front or abut on the public streets and public alleys indicated on the plat, and this advantage is still enjoyed by the appellants. Without an approval of the plat and dedication the street in front of appellants' lot would not be a public street and the alley in the rear thereof would not be a public alley. (3) The waiver is not void for uncertainty as it included any claims for damages which might arise by reason of changing the then present surface of the streets and alleys to conform to such grades as might thereafter be established which clearly means and includes all claims that might arise by reason thereof. The language of the waiver is to be construed in the light of the circumstances surrounding the parties at the time it was executed and the intention of the parties gathered from the whole instrument. Warne v. Sarge, 258 Mo. 168. (4) The city had the power to grade its streets when the waiver was executed. Old Charter, Art. 3, sec. 6, cl. 2. The fact that damages had been waived could not affect the manner in which the power might be exercised. (5) The performance of an act is sufficient inducement for a party entering into a contract. Cold Blast Trans. Co. v. Kansas City Bolt & Nut Co., 114 F. 77. The act inducing the dedicator to execute the waiver was the approval of the plat and dedication. Where the public is granted an easement the grantor is presumed to have intended that it will be exercised in the manner that its enjoyment by the public may require. Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258. To safeguard the taxpayer of the city against damage suits resulting from the grading of Beacon Avenue by requiring the waiver of damages to be embodied in the deed of dedication is in keeping with sound public policy and those who seek the advantages which grow out of the subdividing of the property and the dedication of the streets therein should not be permitted to shift the burden thereof to the taxpayers of the entire city. Protection of the taxpayers from this burden has received the sanction of the Legislature and of the courts. R. S. 1909, secs. 9828; 9044, 9050 (Sec. 5665, R. S. 1899); McQuarter v. St. Joseph, 134 Mo.App. 645; Taber Street No. 1, 26 Pa. Sup. 107. (6) The language of a deed is to be construed against the grantee. Grooms v. Morrison, 249 Mo. 554; Lineville v. Greer, 165 Mo. 380. And in the light of the circumstances surrounding the parties at the time of its execution. Warne v. Sarge, 258 Mo. 168. (7) The act of the Board of Public Improvements in accepting and approving the deed of dedication embodying the waiver was not ultra vires. Old Charter, Art. 6, sec. 1. (8) A deed of dedication is not a mere license that may be revoked by a subsequent conveyance. Pierce v. Chamberlain, 82 Mo. 622; Davis v. Railroad, 119 Mo. 180; Waldron v. Kansas City, 69 Mo.App. 50; Alton v. Columbia, 145 Mo.App. 182. A condition in a deed of dedications runs with the land. Snoddy v. Bolin, 122 Mo. 479. The heirs and assigns are bound by the grantor's deed. R. S. 1909, sec. 2870.
OPINION
Appeal from the Circuit Court of the City of St. Louis. The petition states that plaintiffs, being the owners of certain real estate in the City of St. Louis on Beacon Street, the city established a grade on said street seven feet below the natural surface in front of plaintiffs' property, and graded the street to such established grade, whereby plaintiffs' property and improvements thereon were damaged in the sum of $ 3000, for which they pray judgment.
The answer, besides a general denial, alleged that the damages sued for were waived by reason of the fact that when "Florissant Avenue Hill Sub-division was opened, and the streets and avenues and alleys therein were dedicated, there was embodied in the deed of dedication, the following clause 'All of the avenues and alleys laid out in said subdivision, and for better identification etched on the above plat, are hereby dedicated to public use forever, and any claims for damages which may...
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