MacMurray-Judge Architectural Iron Co. v. City of St. Louis

Burgess, J. This is a suit in equity to enjoin and restrain defendant from changing the grade of certain streets and an alley in said city, in pursuance of its ordinances, until the damage sustained by plaintiff to its property by reason thereof is adjusted, and to recover damage in the sum of $75,000, alleged to have been sustained by plaintiff by reason of said change of grade, etc. The petition leaving off the formal parts is as follows: “Plaintiff states that it is, and was at the times hereinafter mentioned, a corporation created by the laws of Missouri, and the defendant is and has been, since the year 1822, a municipal corporation under the laws of said State. That the defendant duly adopted and enacted an ordinance entitled ‘An ordinance changing certain grades on Twenty-first street, Adams street, Poplar street, Randolph street, Singleton street and Papin street, and to repeal parts of ordinance number four thousand, two hundred and thirty-one,’ which ordinance was approved July 18, 1889, and is numbered 15119. “That prior to the enactment of ordinance 15119, to wit, in the year 1871, Twenty-first street and Papin street, where said streets adjoin block 2282, and the east and west alley in block 2282 had been paved and improved with sidewalks, gutters, curbing and roadway in conformity with ordinance 7741 of said city, — 613 — entitled ‘An ordinance to improve certain streets in the second district south of the north line of Fifth street,’ approved July 6, 1871. “The plaintiff states that it is and has been for many years engaged in business in St. Louis, in manufacturing cast and wrought iron work, such as columns, lintels, sills, beams, girders, stairs, house and store fronts, etc., and it is and has been since 1881, the owner of a lot of ground in block 2282 of said city on the-southeast comer of Twenty-first street and Papin street, having a front on Twenty-first street of one hundred and twenty-seven feet and six inches, and on Papin street of two hundred and ninety-four feet, and is bounded west by an alley twenty feet wide, and said ground is covered by a brick structure, erected by the plaintiff in 1881, extending to the line of Papin street, Twenty-first street, and the alley, and containing the machine shops, foundry, pattern shop, engine and boiler room, tramways, steam hoisting machinery, and other machinery and appliances, in which premises the plaintiff has carried on and prosecuted, and is carrying on and prosecuting, said business. “That the building and improvements of plaintiff aforesaid were constructed and adjusted to the grade of Papin street, Twenty-first street and the alley, as the said streets and alley were constructed pursuant to ordinance 7741 aforesaid, and before the enactment of •ordinance 15119. “That by the provisions of ordinance 15119 the grade of the street at the northwest corner of plaintiff’s building, being the intersection of Papin and Twenty-first streets, is changed and raised six feet above the grade existing at and prior to the passage of said ordinaries; and at the southwest corner of said building, being the intersection of Twenty-first street and the alley the grade is changed and raised three feet above — 614 — the grade at and prior to the passage of said ordinance ; and at the east end of the building on the alley the grade is changed and raised two feet, and at the east end of the building on Papin street the grade is changed and raised three feet above the grade existing at and prior to the passage of ordinance 15119. The plaintiff states that the defendant is prosecuting the work of changing the grade of Twenty-first street, Papin street and the alley, and is conforming said streets and alleys to the grade established by ordinance 15119, aforesaid, and that the execution of said work will compel plaintiff to reconstruct its premises aforesaid and adjust the same to the grade of the said streets and alley as established by ordinance 15119, and will interrupt, obstruct and destroy the manufacturing plant and manufacturing business aforesaid of plaintiff, during the period embracing the reconstruction of plaintiff’s premises aforesaid, and will inflict on plaintiff damage in the sum of seventy-five thousand dollars; and this damage is damage to the private property of plaintiff for public use, and under the Constitution of this State it can not impose on plaintiff without just compensation, and said Constitution provides that until the same is paid to plaintiff, or into court for plaintiff, the property of plaintiff can not be disturbed or the proprietary rights of plaintiff' therein be divested. “The plaintiff states that the defendant has not obtained the consent of plaintiff to the change of grade aforesaid, nor has it attempted to agree with plaintiff as to compensation to plaintiff for said damage, nor-has it instituted the proceedings provided by sections 1815 to 1821, both inclusive, of the Revised Statutes of this State, to have said damages ascertained and determined. “The plaintiff prays that the defendant may be — 615 — restrained and enjoined from changing the grade of the streets and alley aforesaid until the damage aforesaid is adjusted and paid as required by law, and that plaintiff may recover in this action the damage aforesaid, seventy-five thousand dollars, with interest and costs.” The answer is a general denial. On the twenty-fourth of May, 1892, the circuit court entered a temporary restraining order enjoining the defendants ‘ ‘from interfering with or changing the grade of Twenty-first street and Papin street, adjoining the premises of the plaintiff, in the petition herein described, until the damages accruing to plaintiff by reason of such change of grade are established and paid to plaintiff, or into court for its use, the court reserving the other question in this cause until final hearing. The case came on for trial on the fifteenth of May, 1895, when the following proceedings were had. The defendant objected to any testimony being received in the cause, and announced that it consented to a final decree against it confirming the injunction granted by the interlocutory decree and for costs, and the court sustained said objection, and the plaintiff then and there excepted to the ruling of the court, and the court entered the following decree: “This cause coming on to be heard a jury was waived, and the same was argued by counsel for the respective parties, and the court thereupon, against the objection of plaintiff, refused and declined to hear any testimony or to proceed to determine the amount of damages which the plaintiff • claims in its petition it will sustain by reason of the change of grade therein mentioned, and thereupon, with the consent of the defendant expressed in open court, the court ordered, adjudged and decreed that the injunction and restraining order — 616 — entered in this cause on May 24, 1892, be confirmed and stand as the' final decree and judgment in this cause, and that the costs of this proceeding be adjudged against and shall be paid by the defendant, and that execution issue therefor.” The plaintiff filed its motion for a new trial, which, being overruled, it appealed to this court. It is claimed by plaintiff that the judgment of the court below violates the constitutional right of plaintiff, to have compensation for its property damaged for public use. Section 21, of article 2, of the Constitution of this State, provides that: “Private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.” It is conceded by defendant that under said section, one whose property is damaged for public use is entitled to have his compensation adjusted and paid before he is disturbed or his property rights divested, but it is insisted that he can not have an injunction to prevent such disturbance or divestment, and at the same time have a judgment for damages therefor, before any damage has been done or authorized by the city to be done. That is to say, before the damage has been done by the city, the property owner can not, by injunction, restrain the city from damaging his property, and at the same time recover damages for prospective damages that may or may not ever be done to his property. As the-city charter provides that no grading of a street or improvement can be made which — 617 — involves the expenditure of money except by ordinance, it may be conceded that it can not be held liable for damages to property taken or damaged for its use, unless the same be done or committed in pursuance of its ordinances, for such is the only legal mode by which it could be done. Thomson v. Boonville, 61 Mo. 282; St. Louis v. Clemens, 52 Mo. 133; City of Louisiana v. Miller, 66 Mo. 467. But the petition alleges, “that the defendant is prosecuting the work of changing the grade of Twenty-first street, Papin street and alley to the grade established by Ordinance 15119,” from which it is necessarily implied that it was done in pursuance of some ordinance, as the defendant can only act in such matter by ordinance; and it is a well established rule in pleading that things which are necessarily implied need not be alleged. Bliss on Code Pleading, sec. 175; City of St. Louis v. Lang, 131 Mo. 412. But we are unable to see how it. is possible for plaintiff to recover for damage to its property, which defendant is absolutely enjoined and restrained upon its application from committing. The purpose of the suit seems to be to enjoin and restrain defendant from changing the grade of the streets and alley, until the damages are adjusted and paid, and at the same time, and under the same count in the petition recover damages alleged to have been sustained by plaintiff by reason of the change in the grade. Now, plaintiff was entitled under section 21, of article 2, of the Constitution to have its injunction, enjoining and restraining defendant from damaging its property for public use, without-just compensation, and until such compensation was ascertained and paid to it or into court for it; clearly, it is not entitled to both injunctive relief, and at the same time compensa — 618 — tion for damage to its property which on its own application has been prohibited. Plaintiff had its election to either enjoin the defendant from damaging its property until just compensation was paid to it,-or into court for it, or to wait until after the damage actually accrued and then sue the city for full and adequate compensation (Hickman v. The City of Kansas, 120 Mo. loc. cit. 117), but having chosen the former course it must be held bound thereby. From these considerations, it follows that the judgment should be affirmed, and it is so ordered. Q-antt, P. J., and Sherwood, J., concur.