Stapenhorst v. City of St. Louis

Appeal from the Circuit Court of the City of St. Louis. The petition states that plaintiffs, *Page 291 being the owners of certain real estate in the City of St. Louis on Beacon Street, the city established a grade on said street seven feet below the natural surface in front of plaintiffs' property, and graded the street to such established grade, whereby plaintiffs' property and improvements thereon were damaged in the sum of $3000, for which they pray judgment. The answer, besides a general denial, alleged that the damages sued for were waived by reason of the fact that when "Florissant Avenue Hill Sub-division was opened, and the streets and avenues and alleys therein were dedicated, there was embodied in the deed of dedication, the following clause: `All of the avenues and alleys laid out in said subdivision, and for better identification etched on the above plat, are hereby dedicated to public use forever, and any claims for damages which may arise by reason of changing the present surface of said avenues and alleys to conform to such grades as, may hereafter be established by the city, are hereby waived,' which deed of dedication containing the above waiver and the plat referred to in the said deed was then and there accepted by the City of St. Louis, and all of which is recorded in Plat Book 18, at pages 60 and 61, in the office of the Recorder of Deeds in and for the City of St. Louis, Missouri, and that the property described in plaintiffs' petition, as well as that part of Beacon Avenue fronting and abutting thereon, is located in said Florissant Avenue Hills Subdivision." The reply admitted and charged the making on the 6th day of April, 1909, by Josephine A. Collins, plaintiffs' grantor, of said deed of dedication and the due acknowledgment and recording thereof on June 26, 1909. It further set up the joinder in said deed of dedication of the holder of a mortgage but who did not waive said damages for grading. That on June 25, 1909, the day on which the Board of Public Improvements of said city accepted and approved said deed and the plat subdividing said land, said mortgages was duly recorded, and when defendant accepted said waiver of damages for *Page 292 grading the streets, it did so with full knowledge that such waiver did not affect the rights of the holder of said mortgage. The reply further alleged that said waiver was void as to plaintiffs, because said Josephine A. Collins parted with the ownership of plaintiffs' property before said street was graded or damages accrued to said property, and before said Josephine A. Collins knew what she was waiving, as such damages were not thenin esse; that there was no consideration for her making said waiver; that plaintiffs were not bound by said waiver, because no grade of said street was established when they bought said property; that they erected a substantial two-story brick dwelling on said property, and thereafter defendant city, by such grading, changed the natural surface of the street, whereby plaintiffs were damaged, as alleged in the petition. That said waiver is also void, because it is against the Constitution of the State of Missouri, Section 21, Article II, in that it permitted the damage of plaintiffs' property for public use without just compensation. The reply further alleged that plaintiffs claimed title by mesne conveyances from said Josephine A. Collins. There is no allegation that said mortgage was ever foreclosed, or that plaintiffs claimed title by any sale thereunder. The city demurred to the reply, which the court sustained, and the plaintiffs, refusing to plead further, the court rendered judgment on the pleadings for the defendant. Plaintiffs thereupon appealed to this court. I. We think the learned court below committed no error. There is no claim, on plaintiffs' part, that they were purchasers without notice of the deed of dedication made by their grantor, which released the public and the city from damages sued for in grading said street. The petition shows that the street was graded before plaintiffs brought their suit. TheWaiver: presumption is that the city acted upon said waiver ofEstoppel. damage in grading said street, and, therefore, plaintiffs *Page 293 would be estopped to set up that there was no consideration therefor. Independently, however, of the plaintiffs being estopped by waiting until after the street was graded to complain of the want of consideration for such waiver, we hold that the acceptance of the deed dedicating the street andAcceptance. containing the waiver of damages for grading was, in itself, a sufficient consideration to sustain both such dedication and waiver. It is alleged, in the answer and the reply, that the city and its Board of Public Improvements approved and accepted said deed of dedication with said waiver therein, and also the plat subdividing said property laying out said street. The acceptance of a ordinary deed of dedication is sufficient consideration on the part of the public. [Pierce v. Chamberlain, 82 Mo. l.c. 621; Borchers v. Brewer, 271 Mo. l.c. 141-2.] We see no reason why the same rule should not apply when, in addition to the usual dedication of the street, the proprietor also waives damages from grading, or dedicates the right to grade the street in favor of the public. II. But, it is strenuously argued that the damages sued for are in the nature of a chose in action that did not belong to the said Josephine A. Collins, plaintiffs' grantor, because said damages had not then accrued to her land; that suchDamages to waiver did not run with the land, and plaintiffs areAbutting not bound thereby; that the damages claimed onlyProperty. accrued after the plaintiffs became the owners of the property, and that they became entitled thereto under the Constitution of the State when such damages accrued, that the city's right was a mere license, and was revoked by the conveyance of said land to the plaintiffs, that the city's right to grade, granted by said waiver, is and was not an easement in plaintiffs' land. We must rule this contention against the plaintiffs. In our opinion said release and waiver of damages to the adjoining property in grading the street was incorporated in and part of the easement granted the public for *Page 294 street purpose in the land dedicated for the street itself by said deed of dedication. Prior to the adoption of the Constitution of 1875 the dedication of a street for public use, without more, was held (except in Thurston v. St. Joseph, 51 Mo. 510, where the court divided) not only to dedicate the right to use the natural surface, as a public highway, but also to change the grade of the natural surface, either by lowering or raising it, and all damage to the adjoining property caused thereby was considered damnumabsque injuria. [City of St. Louis v. Gurno, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Thurston v. St. Joseph, 51 Mo. 510; Clemens v. Ins. Co., 184 Mo. l.c. 53.] By prohibiting the "damage" to, as well as "taking" of private property for public use without just compensation (the old Constitution only prohibited the "taking"), the Constitution of 1875 excluded the right to grade the street and damage adjoining property thereby, where there was a mere general dedication of the street for street purposes. Accordingly, in such cases, since the adoption of the Constitution of 1875, the adjoining landowner, when damaged by the grading of a street, has had his action therefor. [Householder v. Kansas City, 83 Mo. 488; Sheehy v. Railroad, 94 Mo. 574; Clemens v. Ins. Co., 184 Mo. 46.] But it has never been held that when the dedicator in his deed of dedication goes further and adds to such dedication an express provision, that the public may also grade the street in any way it sees fit, without paying damages, which the waiver in this case, in substance did, the public would still have to respond in damages for doing such grading. We hold that the Constitution of 1875 did not prevent a proprietor of a subdivision of land, who wishes to subdivide it into lots and blocks and streets, avenues and alleys, fromexpressly making his dedication for street purposes, as broad and full as it was held by implication to be under the old Constitution, and to include *Page 295 the right to grade the street, on the part of the public, without paying damages done to his adjoining land. He can give any right to the public in making such dedication, especially if the dedication is made by deed duly signed, acknowledged and recorded, he sees fit to give. This is well illustrated in the case of Julia Bldg. Assn. v. Telephone Co., 88 Mo. 258. In that case, this court held that making an excavation in a street and placing and maintaining a telephone pole therein gave the adjoining property owner no cause of action for the injuries he sustained thereby, because that was one of the uses and purposes for which the street was originally dedicated, although the dedication was simply general, and contained no express provisions for the erection of telephone poles in the street. Judges HENRY and SHERWOOD dissented, but on the ground that such use was not embraced within the terms, express or implied, of the dedication, but they conceded that no suit for damages could arise to the adjoining landowner from any use embraced within the dedication. The majority opinion, uses this language (88 Mo. l.c. 274-5): "If, by reason of the dedication the public have the right to apply the private property of the plaintiff to the use proposed without his being entitled to compensation, how can it be that it becomes entitled to compensation for damages, flowing as an incident from an act, which the dedicator by his dedication, has authorized to be done? . . . 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 give up his right to compensation for damages to adjacent property not taken, resulting from the application of the street to a use which by his dedication he authorized?" In the case before us, the deed of dedication by plaintiffs' grantor to the city gave and dedicated to the public an easement to use and grade the land embraced within the street without payment of damages to her adjacent land, and such deed having been made, acknowledged *Page 296 and recorded before plaintiffs purchased their property, they took title, subject and servient to such public easement. Such easement was an encumbrance on the plaintiffs' lot, which ran with the title thereto. The nature of the rights of the city comes clearly within the definition and characteristics of an easement, as laid down in Black's Law Dictionary, quoted by learned counsel for appellants, to-wit: "A privilege which the owner of an adjacent tenement hath of another, existing in respect to their several tenements, by which that owner against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose land the privilege exists." While the city, or the public, is not the technical owner of the fee in the land in the street, but holds it as trustee for the public for street purposes, its easement for street purposes makes it, in this case, the beneficial "owner of an adjacent tenement,' having a privilege against the tenement "of another" by which the latter "is obliged to suffer some thing on or in regard to his own land for the advantage" of the former. The public's right to grade without paying damages was, therefore, an easement, and not a mere license, revocable and revoked by the transfer of the land to plaintiffs, as contended by appellants' learned counsel. 111. It has also been suggested that the Board of Public Improvements refused to approve the plat of the subdivision unless the deed of dedication containing the release of damages for grading was also signed, which said board had no authority to do, and, therefore, said release was void. It is true,Coerced counsel for the city in their brief contend that saidWaiver. board would have refused to approve the plat unless said deed contained said waiver, as it was the policy of the board to do; but they so contend more by way of argument to show a consideration for *Page 297 such waiver, than as the statement of a fact, in this particular case. They nowhere suggest that the board acted officially, or that any record exists showing any such refusal, rule or policy. The said board could only speak and act by its record, and neither the city nor the public is bound to take notice of its acts and words unless of record. In any event, there is nothing in the record of this case showing any such refusal, nor anything other than a voluntary action of her own initiative, on the part of the plaintiffs' grantor, in making said deed of dedication. IV. (a) It is said, too, that the Board of Public Improvements had no authority to accept a deed of dedication or plat waiving damages for grading the streets. We cannot agree to this contention. Section 1, Article VI, of the old Charter of St. Louis, in force when this deed and plat were made,Power of after providing that the streets laid out in suchBoard. subdivisions should conform to the existing streets of the city, and that such plat should be submitted to said board for approval, and should be of no validity, and should not be recorded by the Recorder of Deeds, "until the approval of said board is endorsed thereon," provided as follows: "The Board of Public Improvements shall have authority to approve maps or plats of sub-divisions which fully dedicate to the public use, streets, alleys and public places, and which are made as herein required." (Italics ours). As we have seen, the waiver of damages herein was part of and appurtenant to the public easement in the streets given and dedicated for street purposes, and was, therefore, clearly authorized to be approved or accepted when contained in any such map or plat or deed by said board on behalf of the city. (b) It also follows that said board would not abuse its discretion as to approving such plats and deeds of dedication connected therewith by refusing to approve them, unless they expressly waived damages in grading the streets, as well as dedicated them to public use. *Page 298 Said board could not be held to abuse its discretionary powers inrequiring, in such plats or deeds, such full public easement in the streets, as it was authorized to approve and accept on behalf of the city. V. Nor can we find anything ultra vires the city, itself, in the law, or the city charter, nor anything contrary to the spirit of the Constitution, in the city accepting this deed of dedication with the waiver therein contained. Section 9828, Revised Statutes 1909, being Section 6239, Revised Statutes 1899, governing cities of 300,000 inhabitants or more, and which applied to the city of St. Louis at the date of said dedicatory deed, expressly provided that when property owners lawfully entitled to damages for grading a street "shall not have waivedall right or claim thereto," then the ordinance providing for such grading should provide for ascertaining and paying such damages. There is no limitation as to the time or manner in which such property owners may make such waiver, and we can imagine no more proper way than by a deed duly executed, acknowledged and recorded as was done in this case, and no more proper time for so doing than the time when the property is platted into lots and blocks, and the street, avenues and alleys are dedicated to public use — as was done in the case before us. The judgment below should be affirmed, in our opinion. It is so ordered. Brown C., dissents; Ragland, C., concurs.