169 Mo. 227 | Mo. | 1902
— This is a proceeding for an injunction to restrain the defendant from constructing a bridge on Clark avenue, from Eighteenth to Twentieth streets, with approaches extending northwardly on Eighteenth and Twentieth streets.
The ordinance (No. 18834) authorizing the, construction of the bridge, provides that it shall be fifty-four feet wide and shall be according to the plans therefor adopted by the board of public improvements. The ordinance appropriates one thousand dollars towards the cost of the work, and recites that when the Union Depot Company and the Terminal Kailroad Association, pay to the city the $150,000 they agreed to pay it as a consideration for ordinance 15989, which authorized those companies to erect the present Union Station and vacate the streets and alleys covered by it, then the
Tbe defendant, on the other hand, shows that for the present, at least, it has abandoned its purpose to construct the bridge in question, and that subsequent events have rendered the ordinance authorizing the construction of the bridge impossible of execution, and that before the city can construct such a bridge or any bridge or change the grade of Eighteenth street in front of the plaintiff’s property, further legislation will be necessary. The defendant further shows that there is no room for even apprehension on the part of the plaintiff that such approach or bridge will be built under-said ordinance, or that plaintiff’s property can be damaged in any way by the fact that such ordinance remains unrepealed, or by reason of anything that can now be done pursuant to the authority of said ordinance.
In this connection a few dates grouped together become very important.
The ordinance vacating the streets and alleys for the erection of the Union Station was approved April 25, 1891. The ordinance providing for the widening of Eighteenth street was approved February 6, 1895. The ordinance for the construction of the bridge on Clark avenue, with the approaches .on Eighteenth and Twentieth streets, was approved March 11, 1897. The ordinance repealing the ordinance providing for the widening of Eighteenth street was .approved April 6, 1899. The only work that was ever done under the ordinance authorizing the construction of the bridge, was to start to put in the foundations for one pier on Clark avenue just outside of the Union Station grounds, which work amounted to $120.30, and the Union Station Company made it impossible for the city to proceed with the work by refusing to let the city comie onto Clark avenue between Eighteenth and Twentieth streets, where their tracks and a part
Upon this showing, the circuit court refused to issue the injunction and dismissed the bill, and the plaintiff appealed.
I.
This case compresses itself into a small compass. The ordinance authorizing the building of the Union Station and providing for a bridge on Clark avenue from Eighteenth to Twentieth streets was approved April 25, 1891. The ordinance for the widening of Eighteenth street was approved February 6, 1895. The ordinance authorizing the building of this bridge and its approaches was approved March 11, 1897. The only work that was ever done under that ordinance was to begin to put in a pier on Clark avenue, which was some distance south of the south end of the plaintiff’s lot, and that work was begun, done and stopped prior to April 28, 1898, and was never resumed. No work has ever been done, threatened or commenced on the approach op^ posite the plaintiff’s lot, as the petition charges. The ordinance for the widening of Eighteenth street was repealed April 6, 1899.
This suit was begun May 20, 1899. The repeal of the ordinances widening Eighteenth street, made it impossible, according to the undisputed testimony in the case, for the city to build this bridge or such approaches according to the terms of that ordinance. The one thousand dollars appropriated by the ordinance authorizing the construction of the bridge, was only sufficient to pay for the construction of the
It is manifest, therefore, that the city could not expend mjore than one thousand dollars under the ordinance authorizing the construction of the bridge^ for that is all that has so far been appropriated. The $150,000 to be recovered from the railroad company is directed to be passed by the auditor to the credit of the fund for the construction of the Clark avenue bridge, but is not appropriated by this ordinance for the payment of this work. The one thousand dollars so far appropriated is only sufficient -to' build the one pier on Clark avenue. The failure of the city to widen Eighteenth street to one hundred feet, made the construction of the proposed bridge an impossibility. The fact, then, is that the city is not threatening and never has threatened to commence any work on the bridge approach nor to do anything that could possibly injure or damage the plaintiff’s property, and the failure so far to collect the $150,000 from the Union Station company has
Hence, neither in fact nor in theory has the plaintiff’s property been damaged hy anything that has been done or can be done under any ordinance now in existence, and without the authority of an ordinance nothing can he done. No real or imminent danger or damage is shown, and there is not even a reasonable apprehension, prospect, possibility or contingency of any such shown to exist.
In 16 Am. and Eng. Enc. Law (2 Ed.), p. 361, the rule is thus stated: “The court can not grant an injunction to allay the fears and apprehensions of individuals. They must show the court that the acts against which they ask protection are not only threatened, but will in all probability be committed, to their injury. An injunction should not be issued to prevent the doing of an act unless the petitioner shows reasonable grounds for apprehending that it .will otherwise be done. If, however, it is shown that the defendants threaten to do the wrong, and that they have the power, the court will issue the writ.”
The same rule is substantially laid down in Bispham’s
2 Story, Eq. Jur. (13 Ed.), sec. 924a, p. 226, says: “But in all cases of this sort, courts of equity will grant an injunction .only in cases where the fact is clearly made out upon determinate and satisfactory evidence. Eor if the evidence be conflicting, and the injury to the public doubtful, that alone will constitute a ground for withholding this extraordinary interposition. And, indeed, the same doctrine is equally applicable to cases of private nuisance.”
Bnder the Constitution of this State, the plaintiff is entitled to have the damage to his property ascertained and paid before his property rights are disturbed, but this plaintiff has failed to make out a case that brings it within the protection of a court- of equity. The action is clearly premature. No damage is now threatened or imminent, or within the power of any city officer to be done. The uncontradicted evidence is that the city has abandoned, for the present at least, the purpose to construct the bridge approaches in front of the plaintiff's property, or more accurately speaking, that the said purpose was never intended by the ordinance in question to be carried out except upon the happening of the condition precedent specified in the ordinance and herein-before pointed out.
Eor these reasons the judgment of the circuit court is affirmed.