State v. City of Vandalia

• Decision Date: 08 May 1906
• Citation: 119 Mo. App. 406,94 S.W. 1009
• Parties: STATE ex rel. DETIENNE v. CITY OF VANDALIA et al.
• Court: Missouri Court of Appeals

94 S.W. 1009

119 Mo. App. 406

STATE ex rel. DETIENNE v. CITY OF VANDALIA et al.

St. Louis Court of Appeals. Missouri.

May 8, 1906.

1. NUISANCE—STRUCTURE IN STREET.

The occupation of a portion of a main street by a platform and shed 60 feet long, 35 feet wide, and 20 feet high, on which platform are large farm scales, a cornsheller operated by steam, and other machinery, which machinery raises dust and is noisy when operated and which annoys the public and is likely to frighten horses, is a public nuisance.

2. MUNICIPAL CORPORATIONS — POWER TO LICENSE NUISANCE.

A city has no power to license such an occupancy.

3. NUISANCE—ABATEMENT—SUIT BY ATTORNEY GENERAL OR PROSECUTING ATTORNEY.

Independent of any statute, the Attorney General or the prosecuting attorney of the county in which a nuisance exists may proceed in equity for its abatement.

4. SAME—STATUTORY AUTHORITY.

Rev. St. 1899, § 6130, which provides that whenever any property, real or personal, is held by a municipal corporation in a fiduciary capacity, the circuit court shall have jurisdiction of a proceeding instituted in the name of the Attorney General or prosecuting attorney to inquire into any breaches of trust, fraud, or negligence, and to administer proper relief, also gives them such right.

5. SAME—PURPRESTURE—ABATEMENT.

A purpresture in a highway is a grievance of sufficient importance to justify its abatement at the instance of the state.

6. SAME—PRESCRIPTION.

The rule that the right to maintain a public nuisance cannot be acquired by time exists when the state, as such, is interested in the proceeding; not when its name is used for the benefit of a private relator.

7. SAME—SUIT BY PROSECUTING ATTORNEY— —EXERCISE OF OFFICIAL DUTY.

Where the information in a suit to abate a structure in a street as a nuisance alleges that the peculiar damage to relator is incidental to the public nuisance, and that the general public suffers and will suffer damage and inconvenience, the presumption is that the prosecuting attorney brought the suit in the exercise of an official duty and not to subserve the peculiar interest of the relator.

8. SAME—LIMITATIONS.

Rev. St. 1899, § 4270, provides that nothing contained in any limitation statute shall extend to any lands given, granted, sequestered, or appropriated to any public, pious, or charitable use, or to any lands belonging to the public. Section 4299 provides that the limitations prescribed shall apply to actions brought in the name of the state or for its benefit in the same manner as to actions by private parties. Held, that the former and not the latter statute governs a suit to abate a structure in a street as a public nuisance, which occupancy was sanctioned by the city authorities, brought by the prosecuting attorney in the name of the state on the relation of a taxpayer on the theory that the city had committed a breach of its trust by surrendering to private and unlawful uses, property which it was under obligation to hold for the general use.

9. LIMITATION OF ACTIONS—CONSTRUCTION OF STATUTES.

The state is never barred by an act of limitation, unless the statute expressly provides that it shall be.

10. SAME—PRESUMPTIONS.

All doubts as to whether the state is barred by an act of limitation must be resolved in favor of the state.

11. NUISANCES — PRESCRIPTION — SUIT BY STATE.

Rev. St. 1899, § 4299, which provides that the limitations prescribed shall apply to actions brought in the name of the state or for its benefit in the same manner as to actions by private parties, does not apply to actions brought by the state to abate public nuisances.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by the state, on the relation of A. L. Detienne, against the city of Vandalia and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The amended petition in this case was as follows: "Be it remembered that J. D. Orear, prosecuting attorney for the said county, who in this behalf prosecutes for the state of Missouri, comes here into the said circuit court of Audrain county, Missouri, and for the state at the relation of A. L. Detienne, of Vandalia, in said county, according to the form of law in such cases made and provided, and for his amended petition and information, gives the court here to understand and be informed that the defendant the city of Vandalia is a city of the fourth class, organized under the laws of the state of Missouri, located within Audrain county; that the defendants J. F. Coontz and E. C. Waters are partners doing business under the name of Coontz & Waters, and are the owners of block 36 in Vandalia, Missouri, and that said lessors and lessees are in the possession of said property and exercise joint control over it. Plaintiff further states that H. street is a regularly established street within the corporate limits of the said city of Vandalia and forms the eastern boundary of said block 36, and that the city of Vandalia as a city of the fourth class holds said street in a fiduciary capacity in trust for the uses and benefit of the public. Plaintiff says that the city of Vandalia and the other defendants named herein have erected in H. street, at a point immediately east of the mill property, a large high platform and shed, and that said platform and shed are about 60 feet in length and about 35 feet in width, and are erected wholly within said H. street. That in said platform the defendants have placed large farm scales and a large cornsheller run by steam, and other machinery, and that said machinery and scales are not guarded by any barriers or railings. That said platform and shed are elevated there above the regular surface of the street to the height of about 20 feet, and that said defendants have placed cinders and other material in said street for a long distance on either side of said platform and also upon the east of said platform, and that said platform with its approaches occupies the greater half of said H. street and completely obstructs all foot travel upon the west side of said street and forms an obstruction completely preventing travel upon the western half of said street and so occupies and obstructs the whole of said street as to prevent the public from using the same as a street and highway, and plaintiff further says that said obstructions and said street are dangerous to public travel and constitute and are a public nuisance. Plaintiff further says that the defendants wrongfully and unlawfully operate machinery in said street emitting dust and makes great noise, and seriously interferes with the public in passing over and along said street. Plaintiff further states that if said obstructions are allowed to remain in said street, persons traveling or attempting to travel over and along said street are liable to severe injury and damage; that collisions are liable to occur between travelers passing over and along said street, and that said obstructions are calculated to frighten horses and cause them to run away, and plaintiff, the state of Missouri, charges the fact to be that said obstructions in said public street constitutes a public nuisance and are inimical to the public welfare. Plaintiff further says that the relator herein is an assessed taxpaying citizen residing in the city of Vandalia. That he is the owner of the west half of block 35 in the city of Vandalia, Missouri, which has a front of about 200 feet on H. street and is immediately opposite the property herein described as the mill property, and that on account of the public nuisance aforesaid which is maintained in the street the said relator suffers a special and peculiar damage differing in degree and kind from the general public, but plaintiff further says that the private damage of relator is incidental to and a result of the public nuisance which is maintained in said street, and that the general public has suffered and will in the future continue to suffer great injury, damage, and inconvenience. Plaintiff further states that the city of Vandalia has been notified of the obstructions herein complained of and requested to remove the same, but it has failed and refused to remove said obstructions, and that the defendant herein, E. C. Waters, is the mayor of said city, and as such mayor, on account of the private benefit he received to his mill property, he is personally interested in maintaining said obstructions in said street, and that the city of Vandalia has refused to remove said obstructions and refuses to institute any suit to compel the other defendants to remove said obstructions, but on the contrary the mayor of said city has retained the city attorney as his private counsel to enable him to maintain said obstructions in said street forever. And plaintiff says that if the state of Missouri is denied a standing in court to complain of the public nuisance herein mentioned, there is no remedy left, either for the public or for any private individual, by which they can effect the removal of said obstructions and cause the nuisance herein complained of to be abated. Plaintiff further says that the street known as H. street is held in trust by the city for Vandalia for the public, and that said city has no right or authority under the law to use said street for any other purpose than for the purpose of public travel, and plaintiff further says that the said city of Vandalia has exceeded its authority and committed a public wrong by placing said obstructions in said street and by suffering and allowing them to be placed therein and to remain therein. Plaintiff further says that the obstructions herein complained of have been maintained and continued in said H. street for such a period of time that any action by private persons who suffer special damage on account of these obstructions is barred by limitations and said private persons remediless on account of any injury they suffer by reason of these obstructions,...