Christian v. City of St. Louis

127 Mo. 109 | Mo. | 1895

Gantt, P. J.

Plaintiff applied on September 13,* 1892, to the circuit court of St. Louis for an injunction ■against the city and the two other defendants to restrain •them from closing up an alley in the rear of his- lot number 1, in 771, fronting twenty-five feet on the east .side of Kosciusko street by a depth of 110 feet on the north side of Dorcas street to an alley fifteen feet wide, •being the alley in controversy. All the remaining lots and property in this city block on both sides of this alley (which runs north and south) are owned by defendant Heitz and Missouri Car and Foundry Company.

The ordinance vacating this alley is numbered 16852 and is in these words:

“An ordinance to vacate the north and south alley in city block seven hundred and seventy-one.

“Be it ordained by the Municipal Assembly of the city of St. Louis as follows:

“Section 1. The north and south alley in city block seven hundred and seventy-one, between Dorcas street and that portion of Lynch street closed by ordinance numbered thirteen thousand, two hundred and twenty-five, is hereby vacated, and the property shall revert to the owners of the adjoining ground. Approved August 10, 1892.”

The annexed plat indicates.

Lynch Street,

Closed to January ist, 1895, by Ord. 13223.

Dorcas Street.

Plaintiff read the following ordinance also in evidence :

“Obdinance No. 13225.

“An ordinance to temporarily vacate certain streets and alleys.

“Be it ordained by the Municipal Assembly of the city of St. Louis, as follows:

“Section 1. Louisa street, between -First street and a point one hundred and fifty feet east of DeKalb street; Lynch street between First street and DeKalb street, and the two alleys and one street in block 767, and the alley twenty feet wide in block 758, for a distance of one hundred and fifty feet north from Louisa street, are hereby vacated as public streets and alleys for the period of ten years from the first of January, 1885, and no longer; provided, however, that the city reserve the right to maintain and repair all the sewers and water pipes now constructed and laid, or which it may hereafter construct and lay in said streets and alleys; and also reserves the right to construct any other sewers in said streets and alleys which it may desire at any time during said period of ten years.

“Sec. 2. The city of St. Louis reserves the right to alter, amend or repeal this ordinance at any time. Approved March 14, 1885.”

It further appeared from plaintiff’s evidence that his said lot number 1 was a sink hole about fifteen or twenty feet deep; that he had owned it some thirteen years; that there were no improvements of any kind on the lot; that the alley in question had never been improved and is from ten to fifteen feet below grade.

No claim is made that any improper influences were brought to bear to induce the municipal assembly to vacate the alley.

The circuit court refused the injunction and plaintiff appeals,

The right of plaintiff, as an abutting owner to the alley in the rear of his lot was a property right. Of this there can be no doubt. Spencer v. Railroad, 120 Mo. 154; Heinrich v. St. Louis, 125 Mo. 424.

On the other hand the right of the city to vacate the alley is expressly conferred by charter. This power to vacate must be exercised subject to the constitutional provision that private property shall not be taken or damaged for public use without just compensation. That plaintiff has a clear legal remedy is without doubt. Heinrich v. St. Louis, 125 Mo. 424. Is he entitled to an injunction against the city1?

It is not every infringement of private rights that calls for equitable interference. In Bailey v. Culver, 84 Mo. 531, the conditions precedent to equitable relief under very similar circumstances were thus defined: “The injury to the well established right must also amount to irreparable damage, incapable of being fully compensated by an action at law; a substantial, not an unimportant or trivial, injury, not disproportionate to the relief sought, nor when, if the relief prayed for were granted and the mandatory injunction should issue, the effect would be to inflict serious damage upon the defendants without doing the plaintiffs any material or practical good, nor where the decree would operate oppressively or contrary to the real justice of the cased ’ In other words, the writ is not to go as a matter of course, but only issues in the exercise of a wise discretion, and to prevent a wrong from which there is no full and adequate remedy.

"When it is remembered that plaintiff’s lot is on a corner, with access to two streets, and that it is only twenty-five feet front, and, although he has owned it fourteen years, he has never improved it in any manner; that it is a mere hole in the ground,fifteen or twenty feet deep, and that this much prized alley has never been improved for travel, and is from ten to fif-' teen feet below grade, and that all the remaining property in the block is owned by the car company and Mr. Heitz, who desire it vacated, and when we consider further that if opened it would create a mere cul de sac, as it must terminate at Lynch street, which has also been vacated, it seems to us apparent that plaintiff’s injuries resulting from vacating this alley are principally imaginary. To tax the whole block for the improvement and maintenance of this alley for the accommodation of plaintiff’s one lot of twenty-five feet would be unjust to the other property owners and-of scant benefit to plaintiff. Indeed, his own witness Gerlich testified: “It would benefit his lot to have the alley vacated.”

We think, under the circumstances, plaintiff was rightly denied an injunction. The courts of law can afford him an adequate remedy for all his damages. The judgment is affirmed.

Buegess and Sheewood, JJ., concur.