211 Mo. 364 | Mo. | 1908
Lead Opinion
— This is an action on a bond in which the plaintiff is seeking to recover $150,000 to he used in the- construction of a bridge designed for a public viaduct over the tracks of defendants along the line of what was Clark avenue extending from Eighteenth to Twentieth street, to restore, to that extent, to the public for use as a highway that much of Clark avenue which was vacated by the city for the use of the defendants under the contract hereinafter considered.
In 1891 the defendants had conceived the purpose of building a great structure to he known as the “Union Station” with appropriate appurtenances and facilities. It was to extend from Eighteenth street on the east to Twentieth street on the west, and from Market street on the north to as far south as was necessary. In the execution of this purpose it was desired by the defendants to occupy with their structure the areas contained in certain streets south of and parallel with Market street between Eighteenth and Twentieth, one
In their answer the defendants admit the enactment of the ordinance vacating the streets and their obligation to pay into the city treasury the sum of $150,000 in part payment of the expense of constructing the bridge when the city should by ordinance provide for its construction, but they deny that the city has lawfully so provided, and they point out many features of the ordinance and the proceedings in relation thereto which they deem defects that render it invalid. The ordinance vacating the streets for the benefit of the defendants is No. 15989 passed in 1891. The Union Station was finished in 1894. In 1897 the city passed the ordinance 18834, which the plaintiff contends'provided for the construction of the bridge. This suit was begun in 1899.
Section 7 of the ordinance 15989 under which the bond sued on was executed is as follows:
“In consideration of the rights and privileges
“An ordinance authorizing the building of a bridge over Clark avenue, between Eighteenth street and Twentieth street, and providing for the cost thereof.
“Be it ordained by the Municipal Assembly of the city of St. Louis, as follows:
“Section 1. The Board of Public Improvements is hereby authorized and directed.' to cause a bridge to be built over Clark avenue, between Eighteenth street and Twentieth street, over the tracks of the Union Depot Company of St. Louis and of the Terminal Railroad Association of St. Louis, including approaches along Eighteenth street and Twentieth street, in accordance with plans adopted by said Board of Public Improvements.
“Sec. 2. The bridge shall have- a width of not less than fifty-four feet and shall be constructed of steel, and the roadway shall consist of steel sheathing, concrete and a brick pavement. The piers and retaining walls shall be built of Portland 'cement concrete and shall rest on piling wherever required.
“Sec. 3. "Whereas, the Union Depot Company of St. Louis and the Terminal Railroad Association of St. Louis, their successors or assigns, are obligated, by the terms of ordinance number fifteen thousand nine hundred and eighty-nine, approved February twenty-fifth, eighteen hundred ninety-one, to pay into the city treasury as part payment of the construction of the bridge herein authorized the sum of one hundred and fifty thousand dollars; therefore said sum of one hundred and fifty thousand, dollars, when so paid into the city treasury, is hereby appropriated and set apart to: the fund for the construction of Clark avenue bridge. The total cost of the work contemplated by this ordinance, being estimated at one hundred and fifty-one thousand d.olla.rs, the portion thereof to be
“Sec. 4. There is hereby appropriated and set apart out of municipal revenue to fund for Street, Bridges and Culverts — new work — the sum of one thorn sand dollars.
“Sec. 5. As soon as the Union Depot Company of St. Louis and Terminal Railroad Association of St. Louis shall pay into the city treasury, as part payment of the construction of said bridge, the sum of one hundred and fifty thousand dollars, as provided for and agreed to, as the consideration for certain rights and privileges granted to the said Union Depot Company, of St. Louis and the Terminal Railroad Association of St. Louis, evidenced by their acceptance of said ordinance number fifteen thousand nine hundred and eighty-nine, approved February twenty-fifth, eighteen hundred and ninety-one, the auditor shall credit said sum to the fund set apart for construction of Clark avenue bridge.”
I. One of the main defects of this ordinance according to the defendant’s theory is that it is in violation of section 12 of article 5 of the city charter which is as follows:
“Sec. 12. All ordinances that contemplate the payment of any money shall, upon their second reading, be referred to the appropriate committee who shall obtain the indorsement of the comptroller thereon to the effect that sufficient unappropriated means stand to the credit of the fund therein named, to meet the requirements of said ordinance, or it shall not be lawful to recommend its passage, or pass the same. Provid
In connection with that section is to he read the following it being a part of section 28 of article 6: “Every ordinance requiring such work to he done shall contain a specific appropriation from the public revenue and fund, based upon an estimate of cost to he endorsed by the president of the Board of Public Improvements, on said ordinance for the whole of the cost of each street, part of street, or other object respectively.”
The criticism is that this ordinance shows that the estimated cost of the bridge was $151,000, yet only $1,000 was appropriated, and that it did not contain the endorsement of the comptroller that sufficient unappropriated means stood to the credit of the fund named to meet the requirements of the ordinance.
This ordinance did contain the certificate of the comptroller to cover the appropriation of one thousand dollars hut not of $151,000:
The certificate was in these words: “I hereby certify that if section four of this hill becomes a part of the ordinance, sufficient means will stand to the credit of fund for Street, Bridges and Culverts — new work — to cover the within appropriation of one thousand dollars.”
Section 6 of article 5 declares: “All taxes collected for municipal purposes, from all sources whatever, shall be designated ‘municipal revenue.’ ” That revenue is the source from which all the special funds are to be supplied, and is apportioned by the Municipal. Assembly to the various funds to meet the requirements of the different departments of the city government, and when appropriation is made for a public work it is made out of the particular fund apportioned for that purpose, hut it all comes in the first place out of the general “municipal revenue.” So in this case
The language of section 28 above quoted shows by its context that it refers only to work to he paid for out of the city treasury; the language is: “Every ordinance requiring such work to he done shall contain a specific appropriation,” etc. “Such work” means work of the character mentioned in the preceding section of that article; there is nothing in any clause of that whole article that indicates that it relates to works of which the cost or any part of the cost is to he paid for otherwise than out of the city treasury. But in the case at bar we have a bridge to he built of which the estimated cost is $151,000 and the defend
But if formal appropriation of the $150,000 which the defendants are called on to pay were necessary the ordinance complies with that requirement as far it is possible to do so, for it declares that when the defendants pay the money into the city treasury it shall be so appropriated.
We hold that the ordinance does not violate the terms of section 12, article V, or of section 28, article VI of the charter.
II. Defendants interpret section 7 of ordinance 15989 to mean that the money sued for is not due until the work of construction has begun, and they say that since it appears from the evidence that the only work for which the city has made a contract and the only work begun was the building of two’ concrete piers,
Defendants misconstrue that part of section 7 of ordinance 15989 calling for payments by defendants after the work of construction has begun; that refers to the other bridges mentioned in that section contemplated to be built crossing defendants tracks between Ninth and Eighteenth streets. The time for the payment of this $150,000 is specified in the language of the contract itself; it is that should the city of St. Louis at any time provide by ordinance for the building of the bridge on Clark avenue, the defendants shall pay, etc.; the time to pay is 'when the necessary ordinance is passed.
If it be said that it would be unreasonable to require the defendants to pay into the city treasury the $150,000, and take the risk of the bridge never being built, although it would seem that defendants consid
Besides, there is not in this record or in the history of the case, as it appears in the briefs, any reason to think that the parties to this contract dealt with each other on a basis of distrust or suspicion; they dealt with each other on the high plane that the character of each contracting party justified, and there is not in the record anything to justify the charge of bad faith on either side. But even if the city were to attempt to misuse the money after the defendants had paid it in, they would have remedy to prevent or right the wrong; they are not dealing with an irresponsible party.
III. The point on which defendants seem chiefly to rely is that according to the plans and specifications referred to in ordinance 18834, the approaches to the bridge are not on Clark avenue, but are on Eighteenth and Twentieth streets.
In the opinion filed in Division 1 by our learned Brother Graves, authorities are cited to show that approaches are to be deemed a part of the bridge, and where a party is under obligation to keep the bridge in repair he is liable if he does not keep the approaches in repair. That is sound doctrine. Although for certain purposes the approaches are to be considered as part of the bridge, yet no artificial reasoning can dispel the fact that there is a physical difference between the bridge and the approach. The very words “bridge” and “approach” carry different meanings to the mind. Congress has jurisdiction of the navigable rivers and you cannot build a bridge over one, even though it be
Defendants are mistaken in point of fact when they say that this bridge is to be built over Clark avenue. Clark avenue is a street several miles in length, but this bridge is to be built over only a very small part of it, to-wit, from Eighteenth to Twentieth street.
We hold that in the construction of this bridge.the
IV. Defendants also contend that in the present condition of Eighteenth street the city cannot build the approach there because that street is only sixty feet wide while the approach designed is fifty-four feet wide, and there is already a double-track street railroad on the street, therefore the approach would impair or destroy the street for the uses to which it is at present devoted, and would damage the adjacent property, which the city would have no right to do until the damages were ascertained and. paid for.
In the consideration of this point we must bear in mind whose property it is we are dealing with and whose rights are being interfered with. This bridge is not being designed for the benefit of the defendants, but for the benefit of the public; the defendants will have no proprietary interest in it, and no interest of any kind different from that of any member of the travelling public or any other owner of abutting property. It is stipulated in the contract that the bridge is to be so constructed as “not to interfere with the operation of trains;” that point being guarded, the only care the city is to observe is the promotion of the interest of the general public. The only interest the defendants have in either of the three streets named, different from that which any citizen has, is in that part of Clark avenue measured from Eighteenth street, on the east to Twentieth- street on the west; as to the rest of that street, and as to the other streets, the dominion of -the city over them is unimpaired, • and the city may devote them to any lawful use it sees fit, without asking leave of the defendants.
The streets belong to the city, and the city may use them as it pleases, provided it pleases to use them only as public highways.
It is necessary to call these points sharply to our
The owner of property abutting on a street has the right of ingress and egress over it to and from his property, and in that respect he has an interest in the street that differs from the interest of the general public, and if that right is impaired he may call the city to account for the injury, but that is a question between him and the city, and, even in such case, if the impairment of the use of the street is occasioned by putting it to a servitude to which the city has the light to put it, damages are not always recoverable. [Nagel v. Railroad, 167 Mo. 89.] But in any event the question of the right of the city to use-the street for a lawful purpose that would inflict damage on adjoining property is a question between the owner of the property and the city; a third party has no right to interfere, and as to the street railroads now on the streets, the interference with them is a matter between the city and the street railroad company, it is no concern of these defendants. In the case at bar it does not appear that the location of the approaches, as designed, would damage the defendants’ property or interfere with their use of it, but if it did the defendants by their contract have expressly waived it.
It has been held by this court that the city has no right to give a railroad company a license to use a public street in such manner as to practically destroy its service as a public highway. [Lockwood v. Railroad, 122 Mo. 86.] But that is not the condition which we are now to consider. The use that is designed to be made of Eighteenth and Twentieth streets by these approaches is an entirely public use, no’ one can make any use of it that every one cannot make; the approaches when constructed will be in their character as much public highways as the streets were before.
Let us turn now to the facts of this case. Here the city is designing to erect in a sixty-foot street a bridge approach fifty-four feet wide; for a distance of about 170 feet from the point where it begins to rise it is to rest on a solid earthwork enclosed in concrete retaining walls, leaving for that length practically only about six feet wide of the street clear of the structure. If that plan is not changed or if the street is not widened, all travel coming south in vehicles on Eighteenth street must stop there or be diverted over this contemplated bridge or turn east on Market street until it reaches Seventeenth street or west to Twentieth or Twenty-first arid coming north the travel would end there or be diverted east on Clark avenue to Seventeenth street. Unquestionably that would be a serious •change in the plan of the street, but has the city authority to do it, if so, who is to forbid? In 1891 the •city granted to these defendants the right to build their structure over several streets which as effectually obstructed traffic on those streets, or diverted it out of its usual course, as will the obstruction the city now «designs to build affect the travel on this street. Was
We hold, therefore, that if the city concludes to erect the approach fifty-four feet wide in Eighteenth street without widening the street it has the right to do so, subject of course to the payment to adjacent prop- . erty-owners of whatever damages the city may be liable for, but with that these defendants have no concern.
But before the defendants can be required to pay the $150',000' now in question they have a right to know, not with absolute certainty as to detail, but with reasonable certainty as to general form, the character of the bridge and the approaches. They have no right to dictate the plans and specifications of the bridge, that is the city’s privilege, but they have a right to know what the city’s plans are.
Eighteenth street coming from the south to Clark avenue, and thence on north to or near the alley between Clark avenue and Walnut street, is 120’ feet wide. What is known as the Eighteenth Street Bridge is a viaduct that carries the street travel over the vast sea of railroad tracks located there. The north end of the Eighteenth Street Bridge is at or near Clark avenue. From the alley above named, going north, Eighteenth
The present suit to recover the $150,000' was founded on ordinance 18834 and was begun March 16, 1899;
So far as the city has indicated its purpose, speaking by ordinance through its Municipal Assembly, it has never intended to reduce Eighteenth street to the condition that would result if the approach should now be constructed as planned; we do not say that the city could not do so, but we do say that it has not so expressed its purpose by ordinance. We interpret ordinance 18834 as contemplating a street one hundred feet wide.
Under the city charter the city cannot take steps to widen Eighteenth street on that side by condemnation until the lapse of ten years from April 6, 1899'. But the widening of Eighteenth street for the purpose of this approach is not so extensive an undertaking as was the former act, that covered a distance of three and a half city blocks, but this would require only a widening of the street for a distance of about a half block. The result of the repeal of the ordinance to widen Eighteenth street is that unless the city intends to so block the way as to divert the travel around that part of the street as above mentioned, it’ must either reduce the width of the approach or widen the street. It can reduce the width of the approach by an amendment of ordinance 18834, or it can acquire sufficient adjoining property to widen the street by agreement with the owner, or by waiting another year begin condemnation proceedings. But until it does one or the other it is to be adjudged as having temporarily abandoned the. plan referred to in ordinance 18834, and until by ordinance it reasserts that plan ' or adopts some other plan it has no right to require the defendants to pay the sum sued for into its treasury.
■ The city may at any time it sees fit to do so, by a new original ordinance or by an amendment to ordinance 18834, “provide . . . for the building of a
The judgment is affirmed.
Concurrence Opinion
SEPARATE OPINION.
— We concur in the result, but for the reasons assigned in the following opinion heretofore filed in Division One, which is as follows:
In February, 1891, the Municipal Assembly of the ■city of St. Louis passed an ordinance, numbered 15989, entitled: “An ordinance authorizing the establishment and maintenance of a Union Depot in St. Louis and the construction of a depot and passenger station In, over, under and upon certain streets and alleys in the* city of St. Louis and to provide for vacating certain streets and alleys.”
This ordinance, besides vacating certain streets and alleys therein named for that purpose, likewise authorized the construction of the present Union Depot and passenger station in said city, by the defend-ants in the present case. The section more particu
“ Section 7. In consideration of the rights and privileges herein granted, said Union Depot Company of St. Lonis and said Terminal Railroad Association of St. Lonis or their successors or assigns, hereby agree, that should the city of St. Louis at any time provide by ordinance for the building of a bridge over Clark avenue, between Eighteenth street and Twentieth street, the said . Union Depot Company and Terminal Railroad Association shall pay into the city treasury as part payment of the construction of said bridge the sum of one hundred and fifty thousand dollars, and said Union Depot Company and Terminal Railroad Association shall for each bridge hereafter constructed across its railroad tracks between Ninth street and Eighteenth street, pay into the city treasury the sum of fifteen thousand dollars, said payments to be made within thirty days after the construction of said bridge or bridges is commenced. It is further provided that upon the acceptance of this ordinance, the Union Depot Company and the Terminal Railroad Association of St. Louis, will file with the city register its penal bond, in the sum of two hundred thousand dollars, for the faithful compliance of the provisions of this section. Said bond to be approved by the mayor and council. The city of St. Louis reserves the right to occupy such space as shall be necessary for said bridge and supports thereunder, and the said companies hereby grant to said city such rights and privileges as may be necessary, to construct and operate said bridge or bridges, provided the same shall be so constructed as not to interfere with the operation of trains. Said Union Depot Company and said Terminal Railroad Association of St. Louis also agree to relinquish any right or claim for damages against said city of St. Louis that may accrue by reason of the erection and construction
In an attempt to avail itself of the rights reserved to it by section 7, above quoted, there was passed by the Municipal Assembly Ordinance No. 18834, as follows:
“An ordinance authorizing the building of a bridge over Clark avenue, between Eighteenth street and Twentieth street, and providing for the cost thereof.
“Be it ordained by the Municipal Assembly of the city of St. Louis, as follows:
“Section 1. The Board of Public Improvements is hereby authorized and directed to cause a bridge to be built over Clark avenue between Eighteenth street and Twentieth'street, over the tracks of the Union Depot Company of St. Louis and the Terminal Railroad Association of St. Louis, including approaches along Eighteenth street and Twentieth street, in accordance with plans adopted by said Board of Public Improvements.
‘ ‘ Sec. 2. The bridge shall have a width of not less than fifty-four feet and shall be constructed of steel, and the roadway shall consist of steel sheathing, concrete and a brick pavement. The piers and retaining walls shall be built of Portland cement concrete and shall rest on piling wherever required.
“Sec. 3. Whereas, the Union Depot Company of St. Louis and the Terminal Railroad Association of St. Louis, their successors or assigns, are obligated, by the terms of. ordinance number fifteen thousand nine hundred and eighty-nine, approved February twenty-fifth, eighteen hundred ninety-one, to pay into the city treasury as part payment of the construction of the bridge herein authorized, the sum of one hundred and fifty thousand dollars; therefore said sum of one hundred and fifty thousand dollars, when so paid
“Sec. 4. There is hereby appropriated and set apart out of municipal revenue to fund for Street Bridges and Culverts — new work — the sum of one thousand dollars.
“Sec. 5. As soon as the Union Depot Company of St. Louis and Terminal Railroad Association of St. Louis shall pay into the city treasury, as part payment of the construction of said bridge, the sum of one hundred and fifty thousand dollars, as provided for and agreed to, as the consideration for certain rights and privileges granted to the said Union Depot Company of St. Louis and the Terminal Railroad Association of St. Louis, evidenced by their acceptance of said ordinance numbered fifteen thousand nine hundred and eighty-nine, approved February twenty-fifth, eighteen hundred and ninety-one, the auditor shall credit said sum to the fund set apart for construction of Clark avenue bridge.
“Approved March 11, 1897.”
Defendants gave the bond provided for by said section 7, and this cause is an action by the city upon that bond, laying damages in the sum of $150,000.' At a trial before a jury, upon the close of the whole case, a peremptory instruction was given directing a verdict for defendants, whereupon the plaintiff took a non-suit with leave, and after a futile motion to set the
To sustain its petition, the plaintiff offered the following evidence: (1) Ordinance 15989, the original Union Depot ordinance first herein referred top (2) , the acceptance of said ordinance by defendants; (3) , the bond sued upon, given under the ordinance numbered 15989; (4), Ordinance 18834, herein above fully set out; (5), House Bill 311 and the endorsements thereon, which said House bill is ordinance 18834, and the endorsements are as follows:
“St. Louis, December 18, 1896.
“The Board of Public Improvements estimates the cost of the entire work contemplated by this ordinance at one hundred and fifty-one thousand dollars; of which sum one thousand dollars is to be paid by the city out of municipal revenue; and one hundred and fifty thousand dollars, by the city out of the special fund to be paid into the city treasury under the provisions of ordinance 15989.
“Robt. E. McMath,
President.
“Attest:
Emory S. Foster, Secretary.”
“Ordinance adopted and recommended by the board to the Municipal Assembly, December 18, 1896.
“Yote: ayes, 6; noes, O.
“Robt. E. McMath,
President.”
‘ ‘ Comptroller's Oeeice.
“St. Louis, Jan’y 29th, 1897.
“I hereby certify that if section 4 of this bill becomes part of the ordinance, sufficient means will stand to- the credit of fund for Street. Bridges and Culverts —new work, to cover the within proposed appropriation of one thousand dollars.
“Isaac H. Sturgeon,
Comptroller. ’ ’
The bond of the Construction Company with this contract and a part thereof was in the sum of $461.71.
By oral testimony and admissions, the plaintiff’s testimony tended to establish the following facts: that the Construction Company began work under their contract and did work in amount not exceeding $200; that it became necessary to enter the Union Depot grounds in the performance of said work, and defendants refused said contractors the privilege of entering said grounds to do the work and also refused the representative of the city, whose duty it was to' supervise the work, the privilege or right of entering their grounds for that purpose; that defendants upon timely demand-refused to pay to the city the $150,000- mentioned in section 7 of Ordinance 159-89; that the said proposed bridge would not interfere with the operation of trains to and from said Union Depot.
The answer of the defendants which is very lengthy, after making certain admissions, consists of a general denial and a number of special defenses, but these special defenses can be best considered along with the evidence introduced thereon, in the course of the opinion, and will be considered in so far as required, in that way.
Other general facts are as follows: the north line of Union Station is Market street; the east line, Eighteenth street; the west line, Twentieth street; south of Market street is Walnut street; between which
I. To our mind there is no question as to the correctness of the action of the trial court in this case, and for several reasons, some of which will be noticed. By Ordinance No. 18834, the city has in no way obligated itself for the construction of this proposed bridge. In its present shape no contract could be made under the ordinance for more than one thousand dollars, and in making the limited contract which it did, the city evidently recognized the limitations of the power to contract under the ordinance in question. This same ordinance was before us in Lester Eeal Es
“In fact, under section 28 of article 6 of the city charter, only work to the amount of the one thousand dollars appropriated by that ordinance could be legally contracted for or done, for that provision of the charter requires a specific appropriation to be made by every ordinance authorizing public work to be done. And section 12 of article 5 of the charter further provides that all ordinances that contemplate the payment of any money shall, upon their second reading, be referred to the appropriate committee, who shall obtain the indorsement of the comptroller thereon to the effect that sufficient unappropriated means stand to the credit of the fund therein named to meet the requirements of the ordinance, and it is made unlawful to pass any such ordinance without such indorsement of the comptroller.”
We think the foregoing from that case is a correct construction of the St. Louis charter provisions. Under these provisions the city must appropriate funds, not a mere debt from another, due or to become due. What is attempted to be done here is to make an alleged debt, growing out of contract, to take the place of actual funds, in an ordinance authorizing a public improvement, and making an appropriation therefor. This, in our judgment, cannot be done. Under the certificate of the Comptroller, there were funds to meet an appropriation of $1,000, but not $151,000. Under section 12 of article 5 of the charter no valid ordinance could have been passed authorizing the expenditure of the estimated cost of this bridge until the comptroller certified that “sufficient unappropriated means stand to the credit of the fund to meet the requirements of said ordinance.” Said section 12 reads: “All ordinances that contemplate the payment of any money shall, upon their second reading, be referred to the ap
To our minds this charter provision is not only clear, but mandatory. Any ordinance passed in violation thereof is void. So that if Ordinance 18834 is an ordinance appropriating $151,000, it is void, as violative of the charter provision. The comptroller did not certify upon the bill by his endorsement that there was $151,000 of unappropriated funds.
But beyond all this, when we read section 7 of Ordinance 15989, supra, it is clear that there is no liability upon the part of defendants, until the city has in proper manner become obligated for the bridge.
The clause in said section that “should the city of St. Louis at any time provide by ordinance for the building of a bridge over Clark avenue, between Eighteenth street and Twentieth street, the said Union Depot Company and Terminal Eailroad Association shall pay into the city treasury as part payment of the construction of said bridge the sum of one hundred and fifty thousand dollars,” should be construed to mean an ordinance in such form as will at least show an obligation upon the part of the city to build the bridge. It should be an ordinance which would at least authorize contracts covering the proposed improvement, and not an ordinance authorizing the expenditure of anything less than the cost or estimated cost of the entire structure. Not only so, but further in our judgment there is no liability upon the defendants until the city, under a valid ordinance so authorizing it, has entered into contracts for the erection of the bridge in all its parts, and not simply a contract for a pair of
The clause in section 7, supra, ‘ ‘ Said payments to be made within thirty days after the construction of said bridge or bridges is commenced’’ means commenced under a valid ordinance authorizing the work and appropriating funds therefor, and valid contracts for the construction of the bridge. Contracts for the construction of two foundation piers, or for the manufacture of some bolt or rod to be used in the construction of the bridge, is not a commencement of the construction of the bridge, within any fair construction of the contract as expressed by the ordinance. Even a casual reading of the record before us shows the utter failure of the city to make out a case by the proof.
The obligations are mutual. Defendants should not be required to pay until there is some obligation upon the part of the city to be out the $150,000', as a part of the construction and contract price of the bridge. There was no such obligation upon the part of the city shown.
So that we hold that until such time as the city has become legally liable for the price of the proposed bridge, there is no liability upon the part of defendants for this $150,000, which was and is to be a mere part of the cost of the bridge. For this reason, if for no other, the action of the trial court in giving the peremptory instruction was proper. By this we mean that if the city is otherwise entitled to recover there would be nothing to prevent the passage of a.
II. There may be several other questions, raised by defendants, just as fatal to plaintiff’s case, as the one hereinabove discussed, but we will not lengthen this opinion by the discussion of but one more proposition which appears to our mind to be the real question upon which it was the purpose of the plaintiff in this action “to draw the fire” of this court. Defendants contend that the proposed bridge is not within the terms of Ordinance No. 15989, because the approaches thereto are a part of the bridge, and these approaches are not upon Clark avenue. Plaintiff contends that in the sense in which the term “bridge” is used, in the said ordinance, it should not be construed to include approaches, and inasmuch as the bridge proper is in Clark avenue, it is the bridge contemplated by section 7 of Ordinance 15989', supra. And to our mind it is apparent that this Ordinance No. 18834 was not passed so much with the view of actually constructing a bridge thereunder, but more to furnish the basis of an action, in which would be determined the contention, last hereinabove mentioned, for in view of the clear charter provisions, there is a lack of good faith upon the face of the ordinance itself. To determine this question some facts are required. The elevation of this proposed bridge is seventeen to nineteen feet or more. The approaches as appear from the blue print thereof are to be of structural steel or iron, for most of the distance, and at the extreme ends is provision for retaining walls of cement, evidently leaving it to be filled with dirt. The structure of the proposed approaches for a large portion of the distances, is not materially different from the bridge spans proper. Owing to the height of the bridge the approaches are, of necessity, long, as indicated by the lengths hereinbefore given.
In the case at bar there is no trouble about distinguishing the approach from the highway generally. The proposed approaches were not to take up the whole highway or street, but only a portion thereof. The proposed scheme was to- widen Eighteenth street, and thus both on Eighteenth and Twentieth streets, public thoroughfares were to be maintained as they now are, except they would be narrower than at present. The approaches here are therefore readily distinguishable from the highway proper.
The doctrine is thus stated in 4 Am. and Eng. Ency. Law (2 Ed.), 941: “Approaches and embankments are, as a rule, a part of a bridge, and the duty to repair includes them. If the charter does not expressly define the limits of a bridge in this respect, its extent must be determined by what is reasonable under the particular circumstances of each case. The extent of the duty to repair the approaches to a bridge, which was perhaps uncertain at common law, was declared and defined by statute 2 Hen. VIII., c. 5, to in-
It is said in several of the English cases that the statute above referred to was but declaratory of the common law, but to obviate all question as to who was responsible for the repair of the highway and the bridge, the statute fixed the distance which should be considered the approach at three hundred feet. The unbending rule at common law was to the effect that the approaches constituted a part of the bridge. In this State we have no statute modifying this common law rule. "We have not defined the term “bridge” so that it appears in our statute with its common law meaning.
In the case of Freeholders v. Strader, 3 Harrison (N. J.) 108, the court said: “The term, a bridge, conveys to my mind the idea of a passageway by which travelers and others are enabled to pass safely over streams or other obstructions. A structure of stone or wood which spans the width of a stream, but is wholly inaccessible at either end (whatever it may be in architecture), does not meet my ideas of what is meant in law and common parlance by a bridge. Sound policy, moreover, requires that we so consider the law as to compel those persons who erect the structure itself to make it accessible at its ends. It is then that an available passageway will be obtained for the public, when the body of the bridge itself is completed.”
And to a like effect are the remarks of Rowell, J., in Tinkham v. Town of Stockbridge, 64 Vt. 480, 24 Atl. 761: “The court charged in effect, that whatever was necessary to connect the wooden structure that spanned the stream and the stone abutments on which it rested with the highway built on the solid ground, and to make the structure accessible and useful as a part of the highway, was a part of the bridge. This was substantially correct. As we have, no statute that
In an extensive note on the case of Railroad v. Daniels, 90 Ga. 608, in 20 L. R. A. 416, the eminent annotator, in a review of the cases, says: ‘ The theory that the approach to a bridge constituting a necessary means of access thereto is to be regarded as a part of the bridge itself was so strongly fixed in the common law that it.was established that for three hundred feet from the end of the bridge, the road must be regarded as a part of the bridge and kept in repair by the party liable for the repair of the bridge. [Reg. v. Lincoln, 3 Nev. & P. 273; Yorkshire West Riding v. Rex, 5 Taunt. 284, affirming 7 East 588. . . . In this country the general theory that the approach is a part of the bridge for most purposes has been accepted, but without adopting the distance of three hundred feet as
"We also find the same doctrine in Elliott on Roads & Streets (2 Ed.), p. 33, sec. 30, thus: “The approaches are ordinarily part of the bridge, for the term ‘bridge’ describes the whole structure, including approaches, abutments, piers and all other parts which are necessary to make it a safe and convenient passageway for the public. ”
The Supreme Court of Indiana, in Driftwood Valley Turnpike Co., v. Board of Com. of Bartholomew County, 72 Ind. l. c. 237, thus speaks.: “Upon this point there can be little or no doubt. A bridge would be a useless structure unless made accessible, and the approaches are as necessary as the bridge itself. It is said that ‘The term bridge imports not only the structure itself and its approaches, but its abutments and embankments and railings, all of which must be kept so furnished that travel' may safely pass/ [Shearm, & Redf. on Negligence (3 Ed.), sec. 253.] ”
And the Supreme Court of Pennsylvania expresses the idea in this manner, in Penn Township v. Perry County, 78 Pa. St. l. c. 45-9: “The design of bridging is to provide a safe and. convenient passage for the public over some stream or ravine, but no such passage is afforded when the structure cannot be approached. Can a house be said to be finished until there are steps up to its doors, or stairs to its chambers? And how can a bridge be said to be completed without the proper means of access'?”
The case law generally is to the effect that the approaches are a part of the bridge. There are several Iowa cases, and some from elsewhere to the effect that this is a question for the jury. After a review of these Iowa eases, in the note found in 20 L. R. A. supra, the writer draws the proper distinction in this language: “So it is held in other cases to be a question for the
The plaintiff here urges that the question whether or not these approaches were a part of the bridge, was a matter for the jury, and relies upon these Iowa cases. These cases are not applicable to the one at bar. Here the plan of the bridge offered in evidence contemplates the construction of those approaches as a part thereof. They are to be constructed by one and the same party, i. e., the city of St. Louis. They are independent of the two ' highways, i. e., Eighteenth and Twentieth streets, for these highways are left intact, although narrowed. Here there is no dispute where the approach begins and the highway ends, as in the Iowa and other cases, where it is held to be a question for the jury. It is only in cases where there is a reasonable dispute where the highway ends and the approach, as a part of the bridge, begins, that it becomes a question for the jury.
We are satisfied that the approaches involved in this case are a part of this bridge and under the facts of the case can be so declared as a matter of law.
Having reached this conclusion we have before us a proposed bridge, to be constructed over three streets, viz., Eighteenth street, Clark avenue and Twentieth street. The original ordinance, which is the contract between plaintiff and defendants, was for a bridge on Clark avenue only. The proposed bridge is not within the purview of their contract, and defendants are in no way liable therefor. This was the view taken by the
