15 Mo. App. 112 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This is a suit in equity for an injunction to restrain the defendants from stopping up a street in the city of St. Louis. At the hearing the circuit court decreed a perpetual injunction, and the defendants have appealed.
Under appropriate pleadings, the following facts appeared : The defendant, the Shiclde, Harrison & Howard Iron Company, a manufacturing corporation, at and prior to the dates with which we are concerned, was the Owner of all the land fronting ou both sides of Papin Street, between Twelfth and Thirteenth Streets; that all of the block north, and half of the block south of this part of Papin Street, were occupied by the foundry works of this corporation ; that, on an average, one hundred and twenty tons of iron were hauled per diem along that part of said street; that said company employed a force of men in its works averaging nearly five hundred, who, with their families, were supported by earnings from the company; that said portion of Papin Street was in almost continual use by the company’s teams during the day; that Papin Street was broken off on the east by Twelfth Street for two blocks or so, when a street nearly in line with it, called Orchard, or perhaps Papin Street, ran east a block or two, and was again cut off as far east as Seventh Street, when it again commenced and ran east; that Gratiot Street and Chouteau Avenue, parallel with and adjoining Papin Street on the north and south, were continuous thoroughfares to the central portion of the city; that, in point of fact, Papin, between Twelfth and Thirteenth Streets, was scarcely travelled at all except by the employés and teams of the company, in consequence of the smoke, noise, and dust, and hauling of teams by the company’s foundry; that the use of said strip of Papin Street by buildings and machinery of the company was becoming highly essential to it in its business, and if it could not be so appropriated the company might be compelled to remove its foundry across the river;
Such was the state of facts when the city of St. Louis, in pursuance, as it seems, of an agreement made with the Shickle, Harrison & Howard Iron Company, passed the following ordinance: —
“ An ordinance providing for the vacation of Papin Street, between Twelfth and Thirteenth Streets, on the dedication to the public of a triangular slip of ground in city block 440.
“ Be it ordained by the Municipal Assembly of the City of St. Louis, as follows:
“Section 1. So much of Papin Street as lies between Twelfth and Thirteenth Streets is hereby declared to be vacated as a public street, and the use thereof for twenty years from the approval of this ordinance is given to the owners of the property abutting thereon, at the expiration of which time the property embraced in the street shall revert'to the city as a public thoroughfare.
“ Sect. 2. This ordinance is not to take effect nor be in force unless a triangular slip of land in city block 441, having a front of twenty feet on Gratiot Street by a depth of one hundred and forty-four feet six inches on Twelfth Street, and bounded as follows: By Twelfth Street on the east, Gratiot Street on the north, and by a line drawn from a point on the south line of Gratiot Street twenty feet west from the intersection with Twelfth Street to a point on the west line of Twelfth Street one hundred and forty-four feet six inches south from its intersection with Gratiot Street, shall have been properly dedicated and surrendered to the city of St. Louis for public use.
“ Sect. 3. This ordinance shall not take effect unless within thirty days from its approval by ‘the mayor, the
The title of the city of St. Louis, to that portion of Papin Street which it thus attempts to dispose of for the term of twenty years came to it through certain dedications, as follows: —
■ 1. A dedication made in the year 1854 by the ancestors of these plaintiffs, under the town plat act, which appears in the recorder’s office, as follows : —
[[Image here]]
“ The above represents a piece of ground belonging to the undersigned; so much of Chouteau Avenue, Papin Street, Gratiot Street, Thirteenth, and Eourteenth Streets, as here represented and comprised within the same are*117 hereby relinquished to the public as highways forever: also alleys through blocks 441 and 442.
f* Witness our hands and seals the 21st day of June, 1854.
“ Mart E. Lane,
“A. E. Lane, Tr.,
“ M. E. Lane,
“Vm. Carr Lane.
2. A strip of ground forty-three feet wide, more or less, of what is now Papin Street, lying next west of Twelfth Street. This did not belong to the plaintiffs’ ancestors at the time of the above relinquishment, and was not covered thereby. It was, however, embraced in a plat of Rayborg & Schaffner’s addition, which was surveyed by Win. H. Cozens and filed in the recorder’s office in 1856. No relinquishment or dedication was indorsed upon this plat. But it appeared that in 1864 and 1865, partition proceedings took place between the Rayborg heirs, and that, in pursuance of those proceedings, deeds were made in 1865 and 1867, calling for fronts on Papin Street of this remain-, ing strip of forty-three feet. There is, therefore, no question of the dedication to public use as a street of Papin Street for the entire distance between Twelfth and Thirteenth Streets.
In 1848, prior to these dedications, the city passed an ordinance numbered 1752, establishing one hundred and seventy-seven streets and parts of streets, the title and first and third sections of which are as follows : —
“An ordinance establishing the wharf, streets, alleys, and public places.
“ Be it ordained by the City Council of the City of St. Louis.
“ Section 1. The following wharf, streets, and parts of streets are hereby established. * * * Papin street from Fifth Street to Seventh Street fifty feet wide, at a dis
“Sect. 3. Nothing in this ordinance shall be so construed as opening and making said streets or any part of them public highways unless the ground has been dedicated to or acquired for public uses in a lawful manner or relinquished to the city by the owner or owners of the ground through which the said streets or parts of streets shall pass.” * * *
. For years prior to the passage of the ordinance under which the city is now attempting to transfer the use of this portion of the street for twenty years to the Shickle, Harrison & Howard Iron Company, Papin Street, between Twelfth and Thirteenth Streets, had been paved and guttered ; Twelfth Street had been opened to the north and south intersecting Papin Street, and two lines of horse cars had been established thereon, communicating with the center and south and southwest parts of the city. It further appeared that Papin Street extends west from Twelfth Street to Grand Avenue; that it is partially built up through that distance, and that the plaintiffs own houses on Papin Street west of Fourteenth Street, and all of the land on both sides of Papin Street between Thirteenth and Fourteenth Streets, except one lot. Testimony was given on the part of the plaintiffs to the effect that the closing of Papin Street between Twelfth and Thirteenth Streets would be injurious to their property; that persons living on that part of Papin Street' west of Thirteenth Street would have to go the distance from Papin Street to Gratiot Street (one block north), or from Papin Street to Chouteau Avenue (one block south), further than otherwise in order to reach the Twelfth- Street cars, if said strip of Papin Street were closed. Testimony was also given on the part of defend
Nor can the Shickle, Harrison & Howard Iron Company be heard to say, as a reason, why the plaintiff will not be specially damaged by the shutting up of the street, that they, in the prosecution of their business, have substantially monopolized it to the exclusion of the public; for this would allow them to set up the commission of one wi’ong as a reason why they should be alio Wed to commit a greater wrong. No doubt they may, in the prosecution of their business, lawfully make such a frequent and constant use of this' portion of the street as will render its use less convenient to the rest of the public as a thoroughfare; but if they have monopolized it entirely, they have committed an actionable wrong, such as would enable any person specially damaged thereby to maintain an action at law for such
This question out of the way, it remains to consider whether, upon the disclosures of this record, the city of St. Louis is to be taken to have the power to shut up Papin Street between Twelfth and Thirteenth Streets, in the manner in which it proposes to do it. Such power is invoked under a provision of the charter of the city which clothes the mayor and assembly with power “to establish, open, vacate, alter, widen, extend, pave, or otherwise improve and sprinkle all streets, avenues, sidewalks, alleys, wharves, and public grouuds and squares, and provide for the payment of the costs aud expenses thereof, in the. manner in this charter prescribed.” Sect. 26, sub-division 2, of the Charter of St. Louis. It is claimed that the city had power to pass the ordinance in controversy under the above grant of power to “vacate” streets. We do not think that this can, in any proper sense, be called a vacation of a public street. Control over the public streets is vested in municipal corporations as a public trust to be exercised for the benefit of all the inhabitants of the state. Kreigh v. Chicago, 86 Ill. 407. The vacation of a street, in respect of which a municipal corporation has assumed this trust, is nothing more than a relinquishment of the trust upon a view that the public good no longer requires its exercise. The city, in vacating a street, in effect declares that it will no longer execute the trust which has been reposed in it, in which it incurs certain legal responsibilities to individuals. It will no longer be responsible for not keeping it open as a street, nor will it be liable to travellers who may be injured in consequence of its not keeping it in proper repair as a street. But this is quite a different thing from the selling or leasing for a consideration to private persons for a term of years of the street itself to the entire exclusion of the public. If any authority upon such a point were wanted, it is found in the decision of our supreme court in
This is a stronger case for the application of the principle thus declared than was that case ; for the ordinance in that case did not attempt to confer the exclusive use of the street upon the railroad company. The public still had some rights therein. The railroad company did not become the private owner or lessee of the ground. It was still lawful for the public to use it as a street, in common
We have reached this conclusion upon the assumption that, in respect of this particular portion of Papin Street, the municipal assembly has the same power which it has over any other street of the city, without reference to the manner in which the street was established. But it appears that all of Papin Street, which the city thus proposes to grant for twenty years to the Shickle, Harrison & Howard
The trust expressed in the plat recorded by the ancestors of the plaintiffs in 1854, as already stated, was that the streets designated on such plats “ are hereby relinquished to the public as highways forever. ’ ’ By section 8 of the town plat act above quoted, the fee of the streets embraced in this plat became vested in the county of St. Louis, “ in trust for
The jurisdiction of courts of equity to prevent such injuries by injunction rests upon the clearest grounds. It may be referred to either one of three separate heads of equity jurisdiction. 1. The power to enjoin breaches of trust. This is the ground on which our supreme court proceeded iii the two cases just cited. 2. The power to enjoin the purpresture of a public highway at the suit of a person specially damaged thereby, which is merely a branch of the general power of such courts to prevent or compel the abatement of nuisances. Mayor, etc., of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 97 ; Carlisle v. Cooper, 21 N. J. Eq. 576 ; Mayor, etc., of Columbus v. Jacques, 30 Ga. 506, 513; Green v. Oakes, 17 Ill. 249, 251; Works v. Junction Railroad, 5 McLean, 425. 3. The power to
The judgment is accordingly affirmed.
