Kingshighway Supply Co. v. Banner Iron Works

WOODSON, J. The plaintiff, the Kingshighway Supply Company, the owner of certain real estate situate in City Block No. 4095, fronting on Kingshighway, and the Union Sand & Material Company, its lessee, brought this suit in the circuit court of the city of St. Louis, against the Banner Iron Works and Ernest C. P. Koken, trustee, also owners of property in said City Block 4095, and the city of St. Louis, to secure a decree nullifying an ordinance of said city, known as Ordinance No. 26203, vacating a portion of the north-and-south alley which runs partly through said block. The trial resulted in a decree in favor of the plaintiff, adjudging the ordinance void, enjoined the de — 145 — fendants from closing the alley, and commanding them to remove all ohstrnctions they may have placed therein. From this judgment the defendants properly appealed the cause to this court. The facts of the case are very well stated by counsel for respondent, in the following language: “All of the properties of the parties hereto are located in City Block 4095. It came down from the common grantor, Henry Shaw. The property of plaintiffs was sold by Henry Shaw to Edwin Berger in 1854; the plat thereof showing its subdivision into lots was recorded in 1855. The property of defendants in the same city block was sold by Henry Shaw to Francis Cooney in 1842, and the same was platted and a strip on Shaw avenue and the alley involved in this suit was dedicated to the public forever in 1872. This was while the property lay outside of the limits of the city of St. Louis. The north line of Shaw’s grant to Berger, which is now the property of plaintiffs, was the south line of Shaw’s grant to Cooney, which is now the property of defendants. The alley in question extends from Shaw avenue south to this line, abutting the north line of plaintiffs’ property, about 192 feet east of the east line of Kingshighway and 170 feet west of the west line of the St. Louis and Oak Hill Railroad. “This alley is the only rear outlet to plaintiffs’ property, which has an undisputed value of $30,000. This alley was used as a means of egress and approach to the rear portion of plaintiffs’ land for a period of over twenty-five years, and at times has been the only means of egress and approach to plaintiffs’ property with wagons and teams. Ordinance number 26203 was designed to close that portion of the alley abutting plaintiffs’ property and to turn the same over to defendants herein. — 146 — “The plaintiffs allege in their petition that the vacation of the alley upon which their property ahuts serves no public purpose; that it was passed solely for the benefit of the Banner Iron Works; that it takes away plaintiffs’ only means of egress and approach' to the rear portion of defendants’ property; that the rights acquired by the plaintiffs established a special easement in said alley through the grant in the original dedication, which cannot lawfully be taken away from them by the city of St. Louis in the manner in which this ordinance was passed; that the attempted passage of this ordinance deprives plaintiffs of their private rights to use this alley without any compensation; that the passage of this ordinance conditioned upon the payment of $200 by the defendant is the attempted sale of public property and plaintiffs’ private rights therein to private individuals; that the closing of this alley would do the plaintiffs an irreparable injury for which they have no adequate remedy at law; that the ordinance is unjust, oppressive and unreasonable, and in contravention to plaintiffs’ constitutional rights. “The answer, after a general denial, admits the dedication of the alley in question for public use and the filing of the survey and plat in the Recorder of Deeds’ office in the county of St. Louis; admits the passage of the ordinance and admits the payment by defendants of the consideration therein named of $200, and pleads that upon the payment of said $200 thereby said alley had been duly vacated. There is no affirmative plea that the plaintiffs were not abutting property owners to that portion of the alley closed.” One of the disputed facts is that the respondents’ property abuts upon the alley proposed to be vacated. The following plat will throw much light upon the questions involved: — 147 — — 148 — Power to v nOHtd Alley. I. Prom the statement of the case it will be seen that the questions of fact and law presented by this record are embraced in a very narrow compass; and that the determination of the question of fact, as to whether or not the property of respondents fronts on the alley, practically disposes of the proposition of law here presented for adjudication. Barring- all constitutional questions, it g-oes without saying-, that the city of St. Louis, under its charter, had the power and authority to enact the ordinance in question, and vacate the alley mentioned. [Former Charter of the City of St. Louis, sec. 26, paragraph 2 of article 3; and present Charter of said city, sec. 1, paragraph 14 of article 1;. Knapp, Stout & Co. v. St. Louis, 153 Mo. 560; Knapp, Stout & Co. v. St. Louis, 156 Mo. 343; Christian v. St. Louis, 127 Mo. 109; Heinrich v. St. Louis, 125 Mo. 424; Glasgow v. St. Louis, 107 Mo. 198.] As was said by this court in the case of Gorman v. Railroad and the City of St. Louis, 255 Mo. 483, “This power [of the city] is full and complete; constituting the city the sole judge when the streets shall be opened or closed for public travel, subject, however, to the constitutional inhibition against taking or damaging private property for public use.” We will, therefore, pass this question, as having been fully settled by the repeated decisions of ibis court. What' is Abutting Property? II. The next question presented is, does the prop-the respondent abut upon the alley mentioned within the legal significance of that Counsel for respondents cite and rely upon the following authorities as supporting the affirmation of this proposition: Corby v. Chicago, Rock Island & — 149 — Pacific Ry. Co., 150 Mo. 457; Faust v. Hope, 132 Mo. App. 287; Dries v. St. Joseph, 98 Mo. App. 611. I am perfectly familiar with these cases, having tried the first and last while one of the circuit judges at St. Joseph. In all three of those cases the property of the respective plaintiffs abutted the alley mentioned, that is, they ran back to and the rear ends thereof fronted upon the sides of the alley, and not at the end thereof, as does the property in this case. For that reason they are not in point here. Upon the other hand, counsel for appellants cite us to the case of Friscoville Realty Co. v. Police Jury, 127 La. 318, as sustaining the proposition that property situate at the end of an alley is not an abutting property within the meaning of the law. In discussing this question the Supreme Court of Louisiana, in that case said: ‘ ‘ The sugar refinery is not an abutting owner' is one of the plaintiff’s grounds. “This is another ground fatal to the defense. “In considering this point, we noted that the sugar refinery’s property (one of the petitioners) is at the end and not along the road. “It follows that its owners have no interest in any part of the public road over which it is the contemplation to locate the car line. As we read the statute before cited, the owners of property have the right to sign, as they are the owners of one-half the abutting road; not so with the sugar refinery.” In our opinion that case announces the proper doctrine in such cases, and if followed by this court, then the respondent has no right, title or interest in or to the alley in question; and would, therefore, if the alley is vacated, sustain only such damages as are common with the public generally. Before the respondents arp entitled to the relief prayed they must plead and prove that they are spe — 150 — cial and peculiar damages different from those sustained in common with the public generally. [Cummings Realty & Investment Co. v. Deere & Co., 208 Mo. 66; Knapp, Stout & Co. v. St. Louis, supra; Knapp, Stout & Co. v. St. Louis, supra; Glasgow v. St. Louis, supra.] The ruling of the Supreme Court of Louisiana in the case mentioned is in harmony with the general statutes and adjudged cases of this State, in this: That when petitions are to be signed and presented for street improvements and tax-bills are issued in payment for such improvements, only such property-owners who own property fronting on the side lines of the street or alley can legally sign such a petition, and only such property, in the absence of an express statute to the contrary, which fronts- upon the side lines of the street or alley is chargeable with the cost of such improvements. I know of no adjudication to the contrary. But if counsel for respondents are correct in their contention that their land abuts the alley in question, then unquestionably the» owners .thereof might lawfully petition for the improvement of the same, and if improved their property would be taxable to pay for said improvements. And suppose respondents’ said property is taxable for all improvements which should be made in said alley, then by what rule should their proportional part of the- cost thereof be ascertained and determined, to.say nothing of the city’s constitutional power to tax it for special benefits. Clearly there is no such rule. Moreover, it is the settled law of this State, in the absence of an express statute to the contrary, that the abutting .property fronting upon the side lines of a street or alley is taxable for the entire cost of the construction, and each piece of property is taxable in proportion to its frontage thereon, which, of course, — 151 — would leave no sum whatever, to be taxed to the property abutting upon the end- of a street or alley. For the reasons stated, we are clearly of the opinion that respondents are not entitled to the relief prayed; and we, therefore, reverse the judgment and remand the cause with directions to the circuit court to dismiss respondents’ bill. All concur.