Superior Press Brick Co. v. City of St. Louis

• Decision Date: 04 November 1941
• Docket Number: No. 25947.,25947.
• Citation: 155 S.W.2d 290
• Court: Missouri Court of Appeals
• Parties: SUPERIOR PRESS BRICK CO. v. CITY OF ST. LOUIS et al.

155 S.W.2d 290

SUPERIOR PRESS BRICK CO. v. CITY OF ST. LOUIS et al.

No. 25947.

St. Louis Court of Appeals. Missouri.

November 4, 1941.

Rehearing Denied November 18, 1941.

Error to Circuit Court, City of St. Louis; Harry F. Russell, Judge.

"Not to be reported in State Reports."

Suit by Superior Press Brick Company and others against the City of St. Louis and others to prevent defendants from enforcing the provisions of a zoning ordinance. To review a judgment for plaintiffs, the defendants bring error. Transferred from the Supreme Court, 152 S.W. 2d 178.

Reversed.

Joseph F. Holland, City Counselor, and Oliver Senti, Associate City Counselor, both of St. Louis, for plaintiffs in error.

Leahy, Walther & Hecker, of St. Louis, for defendants in error.

BENNICK, Commissioner.

This is an original proceeding by writ of error to review a final judgment of the Circuit Court of the City of St. Louis enjoining the City of St. Louis and its officers from enforcing or attempting to enforce the zoning ordinance of the city so as to prevent Superior Press Brick Company and others from removing fire clay from underneath certain land situated within a residential district of the city as defined and established by the said zoning ordinance.

Incidentally, the writ of error was sued out in the Supreme Court, but upon consideration of the case that court determined that it was without jurisdiction, and consequently ordered that the cause be transferred here. Superior Press Brick Co. v. City of St. Louis, Mo.Sup., 152 S.W.2d 178.

The case is presented purely upon the record proper consisting (so far as we are now concerned) of the pleadings and the court's decree.

The material facts of the case leading up to the institution of the injunction suit in the circuit court appear on the face of the respective pleadings.

Superior Press Brick Company and Northampton Realty Company are the owners of adjoining tracts of land aggregating some sixty-one acres, which are situated in the area east of Hampton Avenue and north of Pernod Street, in the City of St. Louis.

In 1929 the Board of Public Service of the City of St. Louis approved a plat filed by Northampton Realty Company, purportedly subdividing its tract of land into lots and blocks, and forever dedicating to public use the streets and alleys as they appeared upon the plat. However, none of such streets and alleys have ever been opened or paved or otherwise improved, and no buildings or improvements of any kind have been erected upon any of the land in question, so that the two adjoining properties, owned respectively by Superior Press Brick Company and Northampton Realty Company, constitute in their entirety a vacant area of sixty-one acres, with no physical line of demarcation separating the tracts from one another.

The eastern eight acres of the Northampton Realty Company tract, together with the entire tract owned by Superior Press Brick Company, constitute together an area of some sixteen acres located in a portion of the city which was formerly devoted chiefly to the mining and treatment of fire clay which underlies the surface of large areas of land in that immediate vicinity. Indeed, it appears from the petition that there are four fire clay mines presently located in that district of the city, three of which are actively engaged in the mining, removal, and sale of fire clay.

The said tract of sixteen acres, which had originally had a large deposit of fire clay underneath it, had been partially mined prior to 1908, when further mining operations were suspended or abandoned upon such land.

During the course of active mining operations, shafts had been sunk and drifts and tunnels cut out underneath the surface of the land, with supporting pillars of fire clay left standing between the drifts and tunnels. According to the petition, the estimated amount of fire clay in the pillars left standing under the land is 100,000 tons, with an estimated reasonable value of $200,000. It was further alleged in the petition that the drifts and tunnels had been left open when mining operations were suspended in 1908, and that in consequence of the subterranean condition of the land, the surface had already sunk or caved in at various points, and was likely to settle and further subside and damage any buildings which might be erected upon it.

Long after the cessation of mining operations upon the land, the City of St. Louis duly enacted an ordinance (Art. II, Chap. VIII, Revised Code of St. Louis 1936) establishing general zoning districts throughout the city, and regulating, among other things, the use of buildings, structures, and premises within such districts, which are five in number, and are designated, respectively, as residential, multiple dwelling, commercial, industrial, and unrestricted districts.

Said ordinance provides that save for lawful nonconforming uses existing at the time of the adoption of the ordinance, no building shall be erected, and no building or premises used, for any purpose other than as permitted in the use district in which such building or premises is located that the owner or lessee of all or any part of a building or premises in or upon which a violation of any provision of the ordinance has been committed or shall exist shall be guilty of a misdemeanor punishable by a fine of not less than $10 and not more than $100 for each and every day that such violation shall continue; and that the ordinance shall be enforced by the building commissioner, from whose decision upon any given matter an appeal may be taken to the board of adjustment as elsewhere provided in the ordinance.

According to the map attached to and made a part of the zoning ordinance, the sixteen acres of land in question were placed in a residential district, in which, under the use provisions of the ordinance, no building may be erected, and no building or premises used, except for the purpose of a one-family dwelling; two-family dwelling; church; school; library, museum, playground, park, or recreational building owned or operated by the city; accessory buildings, such as garages and the like; and uses customarily incident to any of the specifically mentioned purposes to which the land may lawfully be put.

It was alleged in the petition that in order to make said tract of land reasonably adaptable to the uses prescribed for premises in a residential district, it was necessary that the fire clay pillars supporting the roof of the mines underlying the land should be removed and the top surface permitted to drop and settle gradually and evenly, and that without such preparation of the land, the same could not be adapted to, and be used for, the uses of a residential district as prescribed by the terms of the ordinance.

Being desirous of removing the remainder of the fire clay underlying their respective properties, Superior Press Brick Company and Northampton Realty Company contracted with Oak Hill Fire Clay Company for the removal of the clay; and thereafter the three companies joined in an application to the building commissioner of the city for a permit to erect upon the land a tipple and hoisting apparatus for the purpose of the mining and removal of the fire clay, which permit the building commissioner denied (so the petition alleged and the answer admitted) upon the ground that the mining and removal of fire clay from the land would be in violation of the provisions of the zoning ordinance.

From such decision of the building commissioner, the three companies appealed to the board of adjustment, which, after a hearing, sustained the refusal of the building commissioner to grant the necessary permit.

Thereafter the three companies, notwithstanding their failure to have secured a permit from the city officials, set about the sinking of a shaft and the construction of the necessary equipment for the removal of the fire clay deposit remaining on their lands, whereupon the city, through its building commissioner, contending that such acts were in violation of the zoning ordinance, threatened to arrest and prosecute the companies, their contractors, agents, and employees, if they should proceed to drill and open a shaft and mine and remove the fire clay out of the land and away from the premises. As a matter of fact, it was alleged in the petition that the city and its building commissioner had threatened to have the companies, their agents and employees, arrested and prosecuted as a separate offense in violation of the ordinance for each and every day that the companies, their agents and employees, should engage in the work of sinking the said shaft, the construction of the necessary equipment for mining, and the mining and removal of the fire clay from the premises.

It was at this juncture that the three companies, Superior Press Brick Company, Northampton Realty Company, and Oak Hill Fire Clay Company, came into the circuit court and filed their suit for an injunction to restrain the City of St. Louis and its building commissioner from enforcing or attempting to enforce the zoning ordinance so as to prevent the plaintiffs from removing the fire clay underneath the land in question.

In their petition, plaintiffs reaffirmed their position that they did not intend to treat the fire clay on the land, or to use the same on the land in manufacture, or to operate the business in the selling of fire clay on the premises, but that it was merely their intention to mine the clay, bring it to the surface, deposit the same there temporarily, and later remove it from the premises, after the completion of all of which it was their intention to then use the land for the erection and use of such buildings and structures as were permissible in a residential district under the terms of the zoning ordinance. They alleged that they had so advised defendants of their intention, but that the latter had taken the position that the removal by plaintiffs of the clay from their lands in the...