State v. Longfellow

• Decision Date: 18 June 1902
• Citation: 169 Mo. 109,69 S.W. 374
• Court: Missouri Supreme Court
• Parties: STATE ex rel. CITIZENS' ELECTRIC LIGHTING & POWER CO. v. LONGFELLOW et al.

69 S.W. 374

169 Mo. 109

STATE ex rel. CITIZENS' ELECTRIC LIGHTING & POWER CO. v. LONGFELLOW et al.

Supreme Court of Missouri.

June 18, 1902.

NAVIGABLE RIVERS — RIPARIAN OWNERS — EXTENT OF OWNERSHIP — BUILDING BETWEEN HIGH AND LOW WATER MARKS.

1. A riparian owner on a fresh-water navigable river owns to low-water mark, subject to the rights of the public as regards the navigation of the stream.

2. The erection by a riparian owner on a fresh-water navigable stream of a permanent building between high and low water mark is not unlawful as a material interference with navigation.

3. The title to the bed of a fresh-water navigable river below low-water mark being held by the state in trust for the people for the purposes of navigation, a city whose charter gives it control over a portion of such river for the purpose of constructing and regulating public wharves, etc., has no right to grant a permit for the erection of a private building extending beyond the low-water mark.

Mandamus by the state, on the relation of the Citizens' Electric Lighting & Power Company, against C. F. Longfellow and others, to compel the issuance of a building permit. Writ refused.

John H. Overall, for relator. Chas. W. Bates and Wm. F. Woerner, for respondents.

MARSHALL, J.

This is an original proceeding by mandamus, by which it is sought to compel the defendant Longfellow, as commissioner of public buildings in St. Louis, and the other defendants, as constituting the board of appeals from the commissioner of public buildings, to issue to the relator, a corporation organized under the laws of this state relating to manufacturing and business companies, and engaged in the business of manufacturing and supplying electric light and power to its customers, a license to construct a building in that city in which to carry on its business. The petition upon which the alternative writ of mandamus was issued stated that the relator owned "all of city block No. 277, of the city of St. Louis, bounded on the north by Ashley street and its continuation eastwardly to the Mississippi river, on the east by said river, on the south by the north line of Biddle street continued eastwardly to said river, and on the west by Lewis street," and that the relator applied to the defendant the commissioner of public buildings, "for a permit to construct a foundation for said buildings upon the real estate aforesaid owned by your petitioner," and that he refused to issue the permit upon the advice of the city counselor "that the commissioner of public buildings has no authority to grant a permit for the erection of a building or structure extending beyond the established wharf line, and that any such structure is an unlawful obstruction of the harbor of St. Louis." The said petition further alleges that relator purchased said real estate for the sum of $100,000, "the value of said premises being greatly enhanced by reason of the fact that it is bounded on the east by the Mississippi river, permitting the owner thereof to avail himself of the transportation of said stream, unless prevented from making connection with the navigable portion of said stream, which would be the result if the permit to construct petitioner's said building is wholly refused, and the same be not ordered by this court." The return admits that the relator owns city block No. 227, "bounded on the north by Ashley street, on the east by the Mississippi river, on the south by Biddle street, and on the west by Lewis street," but denies that the relator made application for a permit to construct a building "upon the above-described real estate," but, on the contrary, alleges "that it did make application to said commissioner of public buildings for the construction of a foundation for a building to be constructed partly on above-described real estate and partly in the Mississippi river, a public and navigable river, in the harbor of the city of St. Louis, a public highway; and that part of said building, according to the application and plans of relator submitted to the said commissioner, entered into the Mississippi river and harbor of St. Louis far below the high-water mark and below low-water mark; and that the same, as proposed, if built, would be a nuisance, and an unlawful obstruction in said harbor and in said river, and materially interfere with the navigation thereof as a highway"; and that for these reasons the commissioner of public buildings refused to issue the permit. The return further sets up that under its charter power the city of St. Louis, in 1864, established a general system of harbor and wharf lines for the protection and benefit of commerce and navigation, which wharf and harbor lines extended in front of relator's property, "and was and is far below high-water mark and was and is below low-water mark, and is so located that boats at all stages of water can navigate said river up to said line; and that the same is a reasonable harbor regulation"; "that a building or structure extending in whole or in part east of the said line and into the harbor of the city of St. Louis and the Mississippi river is an unlawful infraction of the said harbor regulations, and interference with navigation and commerce; that relator's proposed foundation and building, if constructed as indicated by his said application and by the plans submitted to the commissioner of public buildings, would extend east of said line and into the harbor of the city and into the Mississippi river, and said commissioner and said board of appeals refused to grant a permit for the construction of said building by reason of the facts above stated." The material averments of the reply are as follows: "Plaintiff, for reply to respondents' return and filed herein, admits that the Mississippi river is a public and navigable river, but denies that said building, when completed, will extend into the Mississippi river below low-water mark, or that same, as proposed, if built, would be a nuisance, or an unlawful obstruction in said harbor or in said river, or materially interfere with the navigation thereof as a highway. Plaintiff says that in times of low water the building plaintiff proposes to erect will not extend into said river, but will be sufficiently near thereto for plaintiff to receive the benefits of its riparian rights. Plaintiff says that in the prosecution of its business it will require great quantities of water and coal, and that to receive the same it is necessary for it to reach the navigable portion of said river, and that can only be done by the construction of its said building in the place and upon the plans set forth in its said application to said building commissioner. Plaintiff denies that there is any wharf on the property upon which plaintiff proposed to erect its said building, and says that the city of St. Louis could only establish a wharf upon said property after condemnation or dedication, and that there has never been such condemnation or dedication, but plaintiff and its grantors have for more than one hundred and five years used and occupied said property upon which plaintiff's said building is proposed to be erected, having and using the said river to the navigable part thereof in front of said property."

A special commissioner was appointed to take testimony, and from the stipulation of the parties reported by him the following facts appear: "Stipulation. It is hereby stipulated and agreed between plaintiff and respondents, as follows: First. A tract of land was granted by Spain to Antoine Roy prior to the retrocession by Spain to France of the territory of which the city of St. Louis now constitutes part. That it appears from the testimony of Louis Brazien, November 28, 1808, that Antoine Roy built his mill on said tract about 1798, and that this tract was confirmed by the old board of commissioners by certificates issued February 17, 1809, to Antoine Roy, claiming under himself (Commissioner's Minutes, vol. 3, p. 272; Id., p. 568), and patent certificate No. 238 was issued to him November 5, 1822 (Am. State Pap. vol. 2, 568). That said tract of land, in subsequent conveyances to plaintiff's grantors and prior to January 23, 1864, was conveyed by a description which described the same as block 227 of the city of St. Louis, bounded on the north by the south line of Ashley street and its continuation eastwardly to the Mississippi river, on the east by the Mississippi river, on the south by the north line of Biddle street continued eastwardly to said river, and on the west by Lewis street. That by deed dated January 23, 1864, the tract of land under the above description was conveyed to the St. Louis Grain Elevator Company, and that on May 27, 1901, said company executed and delivered to plaintiff a deed purporting to convey property described in the same way. Second. That plaintiff is a corporation organized for the purpose and with the powers alleged in the petition, and that the defendants are the officials as therein stated, and that the ordinances referred to are truly set forth. That no objection was or is made to the form and manner of plaintiff's application to the building commissioner, and that the technical requirements of the ordinances were duly observed therein (except that it is not admitted that plaintiff had any right to receive a permit for a building or foundation at the location requested, nor that the said location was upon its premises). Third. That the said application for a building permit was made at the time stated in the petition, and refused, and that plaintiff did appeal to the board of appeals in the manner and time required by law, and that said board took such action as shall be considered and taken as tantamount to an approval of the action of the building commissioner, and as a refusal to grant said requested permit to plaintiff. Fourth. Nothing in the above stipulation shall be construed as an admission by respondent that plaintiff at any...