507 S.W.2d 75 | Mo. Ct. App. | 1974
This is a suit to enjoin an encroachment of appellants’ Dairy Queen building at 1509 East 9th Street in Trenton, Missouri,
According to Russell Waller, who surveyed and made a plat of appellants’ property and the street, the Dairy Queen building extended a little over 7 feet onto the right-of-way of Route 6. The area of encroachment of the building was of more recent construction than the original building. The entire right-of-way was 80 feet in width, and between the front, south side of the building and the travelled portion of the street was a sidewalk, and a parkway between the curb and the sidewalk, this area being 8 or 10 feet wide. The street was more than 24 feet wide curb to curb and was constructed of concrete. Appellants’ building did not interfere in any way with the travelled portion of Route 6, which had two. lanes of travel in either direction. Mr. Waller did not know of any plans for widening the street by respondent. Appellants’ property did not create any drainage problems that he knew of, and there were parking facilities behind and to the side of the building, with two driveways going around it.
Earl Ebbe was formerly employed by the City of Trenton in issuing building permits. The zone or area required a 15 foot setback of a building from the property line, and Mr. Ebbe originally turned down the permit, but an appeal was taken to the adjustment board which allowed a waiver of the 15-foot setback. After the permit was issued Mr. Ebbe called Mr. Johns and told him he thought the street was wider than they had been talking about and that he thought he ought to get the property surveyed.
Appellants’ building permit was issued March 13, 1969. On March 25, 1969, George Crooks, then a Traffic Studies Engineer for the Missouri State Highway Department, called upon Mr. Johns. At that time the addition to the Dairy Queen building was partially constructed with its concrete floor poured, and about 1 foot to 18 inches of brick laid. Mr. Crooks advised Mr. Johns that he was encroaching on the right-of-way, and requested him to cease construction and move it off the right-of-way. Mr. Crooks acknowledged that a building to the east of appellants was on the right-of-way, and that ordinarily, except for the travelled portion of the highway, the property owner will mow his lawn and maintain the sidewalks on the right-of-way.
Dale Boxley, a Permit Inspector with the Missouri State Highway Department, was with Mr. Crooks when he interviewed Mr. Johns, and also asked him to remove the building extension. Mr. Boxley was also with the Trenton Mayor when the latter advised Mr. Johns to remove the building from the right-of-way. There was a problem with a considerable amount of encroachments on the right-of-way of North Street, and others voluntarily removed encroachments when they were advised of them.
On October 7, 1964, the City of Trenton entered into a maintenance agreement with the State Highway Commission by which the latter agreed to maintain without expense to the City, among other highways, “State Route 6 — From the west city limits easterly to U. S. Route 65 for a distance of 2.27 miles, the constructed width.” The agreement recited: “The Commission shall have full use of the existing right-of-way to such streets for maintenance purposes, and the City agrees to retain such right-
Additional evidence was elicited on appellants’ behalf which they say supports their contentions. Mr. Johns had obtained a building permit for an addition to his building at a cost of about $3,000.00. During construction there were changes made in the property so that drainage would be to its rear into a storm drain instead of going into the street. About 40 cars could be parked in the off-street parking area around the building; customers did not park in the street; and there were no complaints from the police about traffic. Mr. Johns admitted that he had been asked to remove the encroachment.
Witnesses Shafer, Norris and Hunolt all testified that the encroachment of appellants’ building did not interfere with the public’s right to travel Ninth Street, and that it caused no drainage problem.
It does not otherwise appear here but that there was a dedication to public use of Ninth Street by the filing of the plat by the subdividers of the area in 1891. In that case under the provisions of § 445.-010 et seq. RSMo 1969 (§ 7309 et seq. RSMo 1889) what the City of Trenton received was an easement for public use, and not a fee simple absolute, Ginter v. City of Webster Groves, 349 S.W.2d 895, 899 [3] (Mo.1961); Roy F. Stamm Electric Co. v. Hamilton-Brown Shoe Co., 350 Mo. 1178, 171 S.W.2d 580, 582[2, 3] (Mo. banc 1943), and under the latter case if ever there was an abandonment of the public use, the original grantors or their successors who hold the fee simple, and adjoin the street would take their proportionate interests free of the burden of public use. From that correct premise that they own the fee interest in the street, subject to its use by the public as an easement, appellants make their two-fold argument that there was no obstruction of the street and no injury to the public by reason of the encroachment, and that since the nature of the grant is an easement only the property owners may make use of their premises in any way not inconsistent with the purpose of the easement. For the latter proposition there are general statements, having no bearing upon the permanent nature of the encroachment here, in 28 C.J.S. Easements §§ 72, 91, pp. 750, 770, cited by appellants. Other cases cited by appellants may be distinguished in that they do not relate to an encroachment or obstruction of a public way. United States v. 11.06 Acres of Land, 89 F.Supp. 852 (E.D.Mo.1950) dealt merely with the rights of adjoining property owners to a park area to compensation where it had been federally condemned, and there was no issue of encroachment on a public street. Reutner v. Vouga, 367 S.W.2d 34 (Mo.App.1963), in one issue involved the use of a roadway easement, which had been created for the mutual, not public, use of the original abutting owners, in the construction of a sewer beneath the western 10 feet of the 20 foot roadway, and again no encroachment was involved. State ex rel. Appel v. Hughes, 351 Mo. 488, 173 S.W.2d 45 (1943) was also not an encroachment case, but involved a walkway easement which in the original reservation inured to the benefit of both the grantor and the grantees, and not to the general public.
Contrary to the general statements in appellants’ citation as to use of an easement not inconsistent with its purpose,'there are in the same authority other general statements: “The public has the right to the exclusive use of highways for public purposes, and any unauthorized obstruction thereof, or encroachment thereon, is unlawful, and constitutes a nuisance.” 40 C. J.S. Highways § 217, p. 212; and “One is not justified in obstructing a highway because he leaves sufficient room for passage of the public. An obstruction placed anywhere within the highway limits, although outside of the traveled part, may constitute a nuisance.” 40 C.J.S. Highways § 218, p. 214. See also 39 Am.Jur.2d Highways, Streets, and Bridges, §§ 274, 284, pp. 660, 672.
In Simpson v. Adkins, 386 Ill. 64, 53 N.E.2d 979 (1944), the question was right of the owners of the fee of the land, constituting the highway, to authorize their lessee to enter upon the public highway and drill, maintain and operate oil wells, etc. There was a statute which declared it to be a public nuisance to obstruct or encroach upon any public highway. It was argued that the three wells actually drilled were not on the travelled portion of the street, but the court said that made no difference —there was no contention that the wells were not within the highway boundaries, and at page 984, “In Gerstley v. Globe Wernicke Co., 340 Ill. 270, 172 N.E. 829, this court said that the public is entitled to the uninterrupted, unimpeded and unobstructed use of every portion and part of public streets and alleys, and this includes every inch or foot of such street or alleys, citing (cases).” It was held that the contract which required one of the parties to maintain a nuisance or other obstruction on the public highway had no validity.
In People v. Henderson, 194 P.2d 91, 93 [1-4] (Cal.App.1948), the court said, “It is a well-settled principle of common law, which has frequently been embodied in statutory form, that a structure maintained on a public roadway is unlawful,” and the court enjoined the maintenance of a shed on the highway right-of-way although it
Brown, et al. v. Town of Carrollton, 122 Mo.App. 276, 99 S.W. 37 (1907), held that under the facts awnings projecting over the street were not public nuisances per se, and were not abatable by the city. In Brown, at page 38, the court did note the law governing public nuisances, in accord with the foregoing authority and cases, “[E]very. actual encroachment upon a highway, by the erection of a fence or building thereon, or any other permanent or habitable obstruction, may fairly be said to be a nuisance, even though it does not operate as an actual obstruction upon a public right. * * * The public is entitled to the full and free use of all the territory embraced within a highway, in its full length and breath.’ ” See also State ex rel. Detienne v. City of Vandalia, 119 Mo.App. 406, 94 S.W. 1009 (1906), where a platform and shed blocking half of the travelled portion of the street was held abatable, although licensed by the city. More closely in point with the facts of this case is City of Poplar Bluff v. Knox, 410 S.W.2d 100 (Mo.App.1966), the primary issue was the right of defendants to compensation for buildings they had erected upon dedicated Bartlett Street in an action wherein the City had prevailed in ejectment of defendants from the .street. The judgment in ejectment was not contested, but the court did observe, loc. cit. 410 S.W.2d 103, “Land dedicated to a public use as a street cannot be diverted from that use and a city has no right to permanently obstruct a public highway with a building, and an ordinance undertaking to do so is ultra vires and void”, and at page 104, “The city cannot permit the structures to remain in the street and could not possibly receive any benefits therefrom.” From the dictum in these cases it appears that Missouri does and should accord with the principles which were said in the City of Em-poria case, loc. cit. 297 P. 715, to be of universal application. Appellants’ contentions are thus without merit. For later cases than City of Emporia, see State ex rel. Beck v. City of Hutchinson, 62 P.2d 865 (Kan.1936); City of Russell v. Russell County Building & Loan Assn., 118 P.2d 121 (Kan.1941); and Boise City v. Sinsel, 241 P.2d 173 (Idaho 1952).
The judgment is affirmed.
All concur.