88 Mo. 258 | Mo. | 1885
Lead Opinion
This case is before us on plaintiff’s appeal from the judgment of the St. Louis court of appeals affirming the j udgment of the circuit court of the city of St. Louis, in dismissing plaintiff’s bill, invoking the injunctive powers of the court to l’estrain and enjoin de
' The answer of defendants denies that they are or either of them without license or authority, is or have been engaged in cutting holes in the slabs of lock, or that they are about to take out or remove parts of said stone wall as alleged in the petition, or erect and maintain poles with wires strung on the same, so as to constitute a continuing nuisance, or to the injury of plaintiff as charged iri the petition. It admits that in the construction of said building, the space covered by the sidewalk on Sixth street was excavated and dug out by plaintiff and that the said sidewalk was then re-laid over said excavation, and that part of the building below the surface was so constructed by resting the walls of the building upon piers or arches with spaces under or between them, as to enable persons occupying the building to use in connection with the basement story thereof, the said excavation or hollow space under the sidewalk, and that this space is so used by the William Barr Dry Groods Company. The answer denies that the said stone wall is a part of said building, other than that it is availed of as the eastern Avail of said excaAmfion under the sideAvalk along Sixth street, which Avail the answer alleges was built because of said excavation and
It is shown by the evidence that the ground on which the building of plaintiff was erected had a frontage of about two hundred and seventy feet on Sixth street, and that defendant had permission of the proper city authorities to erect and maintain two telephone poles at the outer edge of the pavement, and just inside the curb stone of Sixth street, each one of them being eighteen inches thick at the bottom and tapering grad nail y to the
Under the above state of facts it may be conceded that inasmuch as the plaintiff is the owner in fee of the land abutting on Sixth street, that it is under the laws in force in 1816, also the owner in fee to the centre of said street. While this is so, such ownership is subject to all the uses to which such street can be properly devoted under the dedication made by Chouteau and Lucas in 1816. u When one claims land as .being part of a street adjoining the premises described in his deed, he cannot also insist that the land is not subject to a servitude as such street. It is only by assuming that it is a street, that he acquires any title to the land therein. And being a part of the street his title is subject to the easement over it.” But it is argued that the erection of telephone poles and stringing wires upon the same as a means of transmitting oral communications instantaneously between distant points in said city is not a use to which Sixth street may, under the dedication, be properly applied, but that it is the imposition of a new and additional servitude. Hence it becomes material to* determine whether such use is permissible, as the rights of the parties to this controversy in a great measure depend on this question.
A highway may be said to be nothing but an easement on the land and that the public have no other right in it than the right of passage, with the powers and privileges incident to the right. “ While this rule as to the extent of the interest which the public acquires in highways is strictly true as to highways in the country, it must be taken with some limitation as to the streets of a city or large village. There are certain uses, such as the construction of sewers, the laying of gas and water pipes to which the latter are generally applied. These — ■ called urban servitude — are the necessary incidents of streets in large cities, and are paramount to the rights of the owner in fee. Whether the streets be laid out, and
In 1816 when Sixth street was dedicated by Chouteau and Lucas to the public, St. Louis was a small Prench village and the necessity for devoting any part of its streets I or the construction of sewers, water and gas pipes did not exist; at that time street horse railroads were unknown and the transmission of messages by means of electricity was not only unknown, but not thought of. But in the advance of civilization and the growth of the village into a large and populous city, public necessity has demanded and required the dévotion"~óf many of its streets to the above • uses, and hence the laying of tracks of street horse railroads in its streets has been authorized andv. sanctioned both bjr legislative and municipal enactment, and it has been held that such use of a street is not an improper use. These streets are required by the public to promote trade and facilitate communications in the daily transactions of business between the citizens of one part of the city with those of another, as well as to accommodate the public at large in these respects. If a citizen living or doing business- on one end of Sixth street wishes to communicate with a citizen living and doing business on the other end, or at any intermediate point he is entitled to use the street, either on foot, on
If it be true, as laid down by the authorities herein ’ cited, that when the public acquires the right to a street, either by dedication, grant or condemnation, the municipality has the power to appropriate it, not only to such uses as are common and in vogue at the time of its acquisition, but also to such new uses as advanced civilization may suggest, as conducive to the public^good. the conclusion is inevitable that the use of Sixth street in the manner and for the purposes proposed is allowable, for it cannot Avith any show of reason be denied, that the means these appliances would afford for the instantaneous transmission of communications for the transaction of business, without resorting to the sloAver and common methods of bearing them, would be conducive
But it is argued that the erection of two telephone poles, each eighteen inches at the bottom with a gradual taper to the top would obstruct the street, and deny to the public the complete and unrestricted use of the street. This argument I think is more specious than sound. It^. is true, that to the extent of the space of eighteen inches each of the poles proposed to be erected would be an obstruction, but the same could be said of lamp posts erected on the streets of a city, the necessities of which might require its streets to be lighted with oil, gas, or electric lights ; and yet no one would be heard to complain that the lamp posts constituted such an obstruction or impediment to the free use of the street as to demand their removal. A in walking along the.pavement_of Sixth street would obstruct so much of the sidewalk as for the time being he occupied, and to that extent the free and un- ' obstructed use of the sidewalk would be denied to B walking just behind A, or immediately in front of and approaching him. The carriage or wagon being driven by C in the street would be an obstruction tó the carriage or wagon being driven by D, just in front of and approaching the carriage being driven by C, and which would have to be avoided by the one or the other turning to the right or left, as the case might be, and yet each would have the right thus to obstruct the street for the time with his carriage or wagon because such obstruction is necessary to the use of the street in that way. Take the case of a street horse railroad, with its rails permanently embedded in the centre of the street, upon which its cars are placed, confined to the track between its rails, drawn by horses or mules along the entire length of its line during all the time the street is being generally used, and incapable of being turned either to the right or left, except at its tracks or turnouts, and we have a serious and permanent obstruction to the free use of the -'
It is also argued by the learned counsel that defendants in making holes through the slab stones, and in removing portions of the stone wall in which to plant the poles, are invading the property rights of plaintiff in appropriating private property to public use without ■compensation. The ownership of the soil by plaintiff tof the centre of Sixth street, being subjectto all the usesto) which the street could properly be devoted, and the erec-'i tion of telephone poles as proposed, being one of the usesl to which the street may thus be devoted, defendants,/; having obtained authority from the legislature as well-1 as the city, would have had the right to remove so much of the soil (where the wall now stands) had it not been removed as to allow the poles to be# securely and safely planted against accidents, and so as to answer the public purposes intended to be accomplished by their erection, without being subject to the charge of appropriating private property to a public use without compensation. The earth where this retaining exterior wall was built was the private property of plaintiff, subject, however, by( reason of the dedication, to the paramount right of the j public to use the street in any way to which it might be properly devoted as a street. Chouteau and Lucas, the dedicators of this street, though retaining the ownership in fee of the soil, agreed by dedicating it, that the public might appropriate so much of the soil as would make the ■street ayailable for. all the purposes ■ of a street, and the
The principle here stated is fully recognized by this court in the case of Ferrenbach v. Turner, 86 Mo. 416, where it was held tliat the city had the right to fill up wells, without compensation to the lot owners who had been permitted by the city to dig them in the streets, as affirming the doctrine announced in the case of Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121, that the city would not contract away the streets for private purposes. In the disposition of the question involved in that case, as well as in this, it is there said: “ The power to regulate the use of streets is not limited to a mere right of way, but extends to all beneficial uses wMchthe public good and convenience may require’from time to time, as for” laying'gas," water and sewer'pipes, and thélike. New uses are constantly arising. All these
We have been cited to the case of the Board of Trade Telegraph Co. v. Barnett, 107 Ill. 507, as sustaining the proposition that the use to which Sixth street is proposed to be put is inconsistent with the proper use of saidíj street. That case simply decides that the erection of' telegraph poles along a highway in the country is incon- :] sistent with the proper use of the highway] When the j' distinction between roads in the country and streets .in a | city, as to the urban servitude which may be imposed on J the latter, is borne in .mind, the opinion referred -to, I
If the dedication of the street is sufficiently operative to allow private property in the soil of the street to foe actually invaded, and physically taken for a street use without compensation, why is it not sufficiently -operative, if in such taking damages ensue, to relieve the taker from the payment of such damages? If by -dedicating property for a street, the dedicator gives up his right to compensation for the uses included in the dedication, how can it be said that he does not also
The evidence in this case has failed to satisfy us that the damage against which relief is sought is of this character. Tb at on the part of plaintiff tended to show that the action of the wind would be likely to cause the poies to vibrate so as to crumble the cement or mortar between the poles and the stone, and allow water to percolate into the basement between the stonewall and brick wall, and that if it percolated in sufficient quantities to cause dampness in the basement, the goods kept there would be injured by mould, and that this, together with the obstruction of the sidewalk with two poles, would greatly lessen the rental value of the building. The ■evidence on the part of defendant tended to show that it was practicable to so insert the poles that no such results would follow; that a number of poles had been so inserted in other streets of the city without any such injurious •results. While the evidence of defendant tended to show that no damage would result if the work were.
Dissenting Opinion
Dissenting. — I do not concur in the foregoing opinion. It cannot be too often repeated that: “ When land is condemned for a special purpose, on the score of public utility, the sequestration is limited to that particular use.” Imlay v. Railroad, 26 Conn. 255. “The grant of a right of way for one purpose, will not authorize the use of the road for another and different purpose.” Williams v. Natural Bridge, etc., Co., 21 Mo. 582; Cape Girardeau, etc., v. Renfroe, 58 Mo. 265 ; Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121. I have no doubt that when properly -is dedicated, or condemned, for a street, the dedicator is presumed to have in contemplation all the uses generally made of streets, and all such as the necessities of the public may subsequently require, although unheard of when the dedication or condemnation occurred; provided such additional use is consistent with that for which the property was dedicated, or condemned, in the first instance. Sewers, and gas and water pipes, may be constructed and laid in public streets, because from time ■ immemorial, streets in cities have been so used, and, therefore, such uses of the street are presumed to have been contemplated. Streets are public thoroughfares for travel, on foot, on horseback, and in vehicles. Street railways have been allowed on streets, on the
What connection, or kinship is there between traveling on a highway and talking through a telephone? ' Telephones might be established and operated in the city ' of St. Louis, if there was not a street in the city. It is ! true that: “ The mode of using a street may and must ‘, ■chango from time to time as the wants of commerce, or ! of the public, may require,” but the additional use must ¡ ■be consistent with, and germane to, that for which it was Í originally dedicated, or condemned: We do not under-' .stand that this doctrine is, in express terms, controverted, " but it is insisted that the planting of telephone poles in the street is not a use of the street inconsistent with that for which it was dedicated. If it is, there can be no ■question, under our present constitution, which forbids ’ the taking, or damaging of private property for public ■use, without just compensation, that plaintiff has the right to have her damages assessed and paid, before the ' property can be used as proposed. That .the damage is large or small does not affect the principle. If but one dollar, still it must be ascertained and paid to the property holder.
If planting telephone poles in the street of a city is not foreign to the use of the street for general street purposes, it is difficult to conceive what kind of a structure would not be warranted on the plea that the public interest demanded it. If one line of poles may be planted along the sidewalk, the same principle would j ustify the" planting of a line in the middle of the street, and if one,'
An elevated street railway which is operated solely for the purpose of carrying persons to and fro in a city, is a use of the street more consistent with, and germane-to, that for which it was condemned or dedicated, than a telephone can possibly be; yet, it was held, in Story v The Elevated Street Ry. Co., supra, that it was a struc
There are really no disputed questions of law in this case, but the difference between us arises in the application of conceded constitutional principles.