Wilson v. Kansas City

• Decision Date: 17 June 1942
• Docket Number: No. 37227.,37227.
• Citation: Wilson v. Kansas City, 162 S.W.2d 802 (Mo. 1942)
• Parties: WILSON v. KANSAS CITY et al.
• Court: Missouri Supreme Court

162 S.W.2d 802

WILSON v.KANSAS CITY et al.

No. 37227.

Supreme Court of Missouri, Division No. 2.

June 17, 1942.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

Action by Keith Wilson against Kansas City and the Sheffield Steel Corporation for damage to plaintiff's land by vacation of a portion of a street.From a judgment sustaining a demurrer to the petition, plaintiff appeals.

Affirmed.

John F. Thice, of Independence, for appellant.

William E. Kemp, City Counselor, and Benjamin M. Powers, Asst. City Counselor, both of Kansas City, for respondentKansas City.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, of Kansas City, for respondentSheffield Steel Corporation.

PER CURIAM.

By this action the plaintiff, Keith Wilson, complains that the defendants, Kansas City and the Sheffield Steel Corporation, have damaged his real estate by vacating a portion of Wilson Avenue.The sole question on this appeal is whether or not his petition, to which the trial court sustained a demurrer, states a cause of action.

The petition alleges that Wilson Avenue was an east and west street, formerly one of the two principal streets connecting Kansas City and Independence, Kansas City being to the west.The plaintiff's property is particularly suitable for wholesale and retail business and is leased to a lumber company.It is alleged that his property "lies north and adjacent to and abuts on Wilson Avenue from the west line of the Missouri Pacific right-of-way to the easterly line of the right-of-way of the St. Louis San Francisco Railway Company."The lot between the railroad tracks is 140 feet by 220.8 feet by 144.6 feet by 199 feet facing on Wilson Avenue.

In March 1937, after a petition had been filed by Sheffield Steel Corporation, Kansas City, by ordinance, vacated Wilson Avenue beginning at the east line of the Missouri Pacific tracks easterly through the Sheffield Steel Corporation which owned the land on both sides of the street for some distance.The ordinance recites the vacation to be a part of the Big Blue River improvement and the street was vacated east to Blue River.

The plaintiff's petition then alleges that as a result of the vacation of Wilson Avenue "his only means of ingress and egress from the east has been stopped and blockaded and in order for persons residing east of plaintiff's property to gain access thereto,"they are required to travel a circuitous route because there are no north and south streets intersecting with Wilson Avenue east of the Missouri Pacific tracks and the street vacation at the tracks forms a cul-de-sac.He alleges that people having business at his property are compelled to cross and recross the Frisco tracks and sometimes the tracks are obstructed causing the traffic to become congested and thereby depriving him of free ingress and egress.

He then says: "That by reason of said property being located at the dead end of said street all traffic having business with the Sheffield Steel Corporation or with plaintiff's property, and all those arriving at the dead end of said street are required in the absence of any other outlet, and none now exists, to turn their vehicles immediately in front of plaintiff's property, thereby retarding and impeding plaintiff's right of ingress and egress."He alleges his right of egress and ingress has been "further restricted and damaged in that all of the property lying south of Wilson Avenue, between the right-of-way of the two railroads * * * and now owned by the Sheffield Steel Corporation, has been converted into a private parking lot for hundreds of employees daily employed by said defendant * * * and that portion of Wilson Avenue upon which plaintiff's property abuts has been converted from a public street into a private right angle entrance to the parking grounds of the defendant, * * * thereby greatly restricting, retarding, damaging and interfering with plaintiff's only remaining cul-de-sac means of ingress and egress where formerly said * * * employees" could enter defendant's premises without making a right angle turn in front of plaintiff's property.

The plaintiff states that all the damage to his property is special and peculiar to his property and not such as is common to other property owners on Wilson Avenue.

The plaintiff's theory is that his petition states a cause of action because a city must respond in damages for a special and peculiar injury to property substantially abutting or adjoining a vacated street.He says the cul-de-sac, formed by the vacation of the street, and thereby the manner in which the street is used, restricts and impairs his right of egress and ingress and constitutes an injury to his property different in kind from that sustained by the public in general.In his argument the plaintiff says he is not contending he is entitled to damages merely because he is deprived of the right to travel eastwardly on Wilson Avenue but "he is asserting that his being deprived of means of ingress and egress from the East * * * compelling him to enter his property at a right angle, * * * coupled with the fact that his means of ingress and egress from the street are hampered and impaired, by the conversion of * * * the cul-de-sac, into a main entrance, for the hundreds of employees of the Sheffield Steel Corporation * * * aggravated by the existence of the grade crossing of the Frisco" constitute a damage special and peculiar to his property.

The plaintiff also states that from first appearances it might seem the identical question of law involved had been previously decided but the fact is the question of damage (injury) to a landowner adjoining a vacated portion of a street upon which the property abuts has never been decided.He says the distinction is that in all the decided cases ingress and egress from both directions was allowed, by the vacation, to a limited degree as when intersecting streets afforded some outlet in the direction of the vacated street.He very frankly puts his case on the basis that: "Under such circumstances it is not necessary for recovery that appellant's property abut on a portion of the street actually vacated, in order to recover damages."

On the contrary, the respondents say that since it affirmatively appears from the plaintiff's petition that his land does not abut on that part of the street vacated the plaintiff's land is not denied access to and from the general system of streets and his petition does not state a cause of action entitling him to damages.

The property right in an abutting street secured to the abutting landowner, the injury of which entitles him to damages, is his easement in or right of access to the street and his untrammeled use of it."The right protected by the Constitution because it pertains to his property is the right of access to the street or free passage between his property and the street, so that he may go upon it to exercise his public right of travel, and when he has done so return to his own grounds."Gorman v. Chicago, B. & Q. Railroad Co.(Gorman v. City of St. Louis), 255 Mo. 483, 491, 492, 164 S.W. 509 511;Rude v. St. Louis, 93 Mo. 408, 6 S.W. 257;Glasgow v. St. Louis, 107 Mo. 198, 17 S.W. 743;Fairchild v. St. Louis, 97 Mo. 85, 11 S.W. 60.Consequently, when a landowner has sought to recover damages for injury to that property right caused by a street vacation, a railroad embankment or other obstruction and it affirmatively appeared (from pleading or proof) that his property did not abut on the closed section of the vacated street so that his right of ingress and egress was not injured in that he still had reasonable access...