City of St. Louis v. Wetzel

110 Mo. 260 | Mo. | 1892

Barclay, J.

The original purpose of this action was to condemn a strip of land, sixteen feet wide by seventy feet and two inches long, in block 695, to. public use as an alley, and assess the “benefits” of the improvement as required by the city charter of St. Louis. R. S. 1889, sec. 5, p. 2120.

An alley had previously been opened from Miller street, part way through that block; and the taking of the strip of land mentioned would prolong the original alley as a passage way through the entire block from Miller to Barry street. The strip was alleged to belong to Mr. Thomas. The commissioners valued it at $820, and assessed “benefits” partly against his adjoining property, and partly against the property of the appealing defendants, which abutted on that portion of the alley previously opened “in said block.” Judge Valliant, who tried the present case, held that mode of assessing “benefits” correct. We entirely coincide .in his judgment on that subject for the reasons given in City of St. Louis v. Lane (1892), ante, p. 254.

But there are some other assignments of error on this appeal that require remark.

II. It is claimed that the strip of land in question had been acquired by the public as an alley, by common-law methods, parol dedication by the proprietor, acceptance by the public, by user and otherwise, long prior to these proceedings. In this connection it appeared that, in 1868, “Miller street sewer district number 1,” was established.by ordinance, under which a public sewer was shortly afterwards built along the entire length of this alley from Barry to Miller street. Special tax bills for its construction were issued against the owners of the property abutting on the alley; among others, against Mr. Thomas. He paid these special taxes.

There was also evidence that people had long been accustomed to use the strip of ground as a passage way, and that it was designated as part of a public alley on the official maps at the City Hall, and had been for many years.

But, on the other hand, there was testimony on the part of Mr. Thomas to the effect that when the workmen, building the district sewer referred to, reached this strip of ground, he stopped them; but, afterwards, at the solicitation of the city engineer, permitted the work to proceed on promise of thelatterthat his improvements on the strip should be guarded against damage. A year or two later,, he replaced his old stable, standing partly on this property, with a new shed and stable; about a year later he built sheds across the strip at its north and south ends, and has kept them in order and in his possession ever since.

Without, however, going further into the details of the testimony on that issue, it will be sufficient to say that they furnish ample support for the court’s finding that no effective dedication of the property to' public use was ever made by Mr. Thomas.

Findings of fact by the trial judge we db not review in statutory cases of this kind any more than in ordinary actions at law.

III. Exception is next taken to the commissioners’ award of damages for the value of the Thomas property, sought to be subjected to public use.

The circuit court heard considerable evidence on that subject, mostly from real-estate experts. It was decidedly conflicting. Its value was for the determination of the trial judge^ We see no good reason for disturbing his finding on this point, approving the report of the commissioners.

The judgment is affirmed, with the concurrence of all the members of this division.