Glasgow v. City of St. Louis

Norton, J. This cause is before us on defendant’s appeal from- the judgment of the St. Louis court of appeals affirming the- judgment of the circuit court enjoining and- restraining defendants from closing so much of Papin street as lies between Twelfth and • Thirteenth streets in the city of St. Louis. The defendants claim the right to close or stop ujo said street by reason of the following city ordinance: “12,457. An ordinance providing for the vacation of Papin street, between Twelfth and Thirteenth streets, on the dedication to the public of a triangular slip ,o£ ground in city block 441. [681] “Be it ordained by the municipal assembly of the eity 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. “Sec. 2. This ordinance is not to take.effect nor be in force unless a triangular slip of land in the city block 441, having a front of twenty feet on Gratiot street by a depth of one hundred and forty-four feet six inches bn 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 soxxth from its intersection with Gratiot street, shall have been properly dedicated and surrendered to the city of St. Louis for public use. “ Sec. 3. This ordinance shall not take effect unless witkiix thirty days from its approval by the mayor, the • Sliickle, Harrison & Howard Iron Company shall file viith the city register its bond to the city of St. Loxxis, in -Ike penal sum of twenty thousand dollars, with two or more good and sufficient securities, to be approved by the mayor and council, conditioned that said Shickle, Harrison & Howard Iron Company shall save the city of ■St, Lonis harmless from the payment of any costs, damages, judgments, outlay or expenditures by reason of vacating said street as aforesaid, and at the same time pay- into the city treasury the sum of two thousand dollars. “Approved March 27, 1883.” [682] It is claimed that this ordinance is valid by reason of -a charter provision which invests the mayor and assembly with power “to establish, open, vacate, alter, widen, extend, pave or otherwise improve * * * all streets,” etc. The ordinance, though using the word, vacate, does not propose,; taking the word in its ordinary meaning, to vacate -Papin street. Looking at it in its entirety, it proposes to deny to the public the use of the street for twenty years, and to devote it during- that time to the exclusive private use of the Shickle, Harrison & Howard Iron Company at a fixed price, at the expiration of which time the city is again to resume control of it as a street. The charier provision invoked to sustain the ordinance confers no such power as was exercised in its passage. The streets of the city are held by it ill trust for the public for street uses and purposes and none other. This precise question was carefully considered in the case of Belcher Sugar Refining Co v. St. Louis Grain Elevator Co., 82 Mo. 127, where it is held, that'“it •would not do to permit property condemned for one purpose to be used for another and different purpose,. Or-property condemned for public use to be appropriated to private use. The latter can no more be done than could the property in the first instance have been condemned for such use.” See also the cases therein cited which abundantly sustain the proposition announced in' the opinion. The fact that the public acquired the use of Papin street by dedication instead of condemnation, does not affect the principle. The above case also affirms the right of a person who sustains peculiar or special damages by reason of the application of a street or wharf to private instead of public uses, to be redeemed by an appeal to the injunctive powers of the court. Prom the fact that'1 the evidence offered on the trial to show that plaintiffs would or not sustain a special damage from [683] closing up Papin street as proposed, is not preserved in the record except by tlie general statement that it tended on the one side to establish such damage, and tended on the other side to show that no damage would result, we are precluded from going into that question further than to say that we must indulge the presumption that the evidence was sufficient to satisfy the mind of the trial judge that damages peculiar and special to plaintiffs would result from shutting up Papin street. Judgment affirmed with the concurrence of the other judges.