Bailey v. Culver , 84 Mo. 533 ( 1884 )

Sherwood, J.

This is an equitable proceeding, having for its object the removal of a large and costly brick and stone structure, five stories high, which was erected on the corner of Eighth and St. Charles streets, .-and of the former street and Washington avenue, over a portion of an alley (about eighty-six feet in length), running through block one hundred and sixty-four in the -city of St. Louis. The cost of the building was $155,000. By ordinance dnly passed, the route of the old alley was Changed as marked in the plat which accompanies this opinion, and was deflected so as to enter St. Charles, street, instead of, as formerly, entering Eighth street. The property of plaintiffs is situated on the corner of Seventh and St. Charles streets, running back to the alley in question, is sixty-three feet in width, and it is some one hundred and twenty feet east of the east line of defendant’s lots, and of the point where the old alley is closed by the building which forms the subject in controversy.

The evidence abundantly establishes that the deflected alley is equally, if not more convenient for ingress and egress than the old one, and that the increase in distance to the point where the old alley opened on Eighth street, in consequence of the closure, is not a. matter of any considerable importance. The prayer of the petition is : “That defendants may be compelled to remove said obstruction, and to abate said nuisance upon said strip of land, and to put said strip and passage-way into good repair, so that plaintiffs may pass over and along the same, and may have the usé and enjoyment of their said easement and right of way therein as heretofore, and that defendants may be perpetually restrained from further obstructing said right of way and easement,, and from further interference with plaintiffs’ passing to. and from their property over said strip of land, and for all such other and further relief,” etc., etc.

In considering the correctness of the dismissal of plaintiffs’ petition it will not be necessary to discuss many of the points discussed by the court of appeals, since the judgment of that court may well be affirmed, for the following reasons, if for no other:

The plaintiffs, in order to obtain the extraordinary relief for which they pray, must show a special injury other than, and different from, that which they suffer in common with the general public ; for it is settled law that where a highway is altered, obstructed, or altogether-vacated, no action will lie except by him who “has greater trust or incommodity than every other man has.” Kinealy v. R. R., 69 Mo. 658, and cases cited. Now, if, as appears from the evidence, the alley referred to was really dedicated to the public use long prior to the report of the commissioners in 1863, such dedication is an exclusion of any subsequently acquired private right or easement in the highway thus dedicated, as contradistinguished from the right every citizen has to use such highway for the purpose which caused the dedication, Trustees v. Council, etc., 33 N. J. L. 19; Goddard on Easements, 75; Chichester v. Lethbridge, Willes 71. And it is also well settled that when a dedication to-public use occurs, this is wholly inconsistent with the continued and contemporaneous existence of a private way independent of the public right. In such instances the private right is swallowed by and merged in, the-public one. Kimball v. Kenosha, 4 Wis. 321; Wash. on Easements, 202; Mercer v. R. R., 36 Pa. St. 99.

Of course these remarks do not apply to obstructions in the public highway which directly affect abutting proprietors, for in such case the injury would be immediate and special, altogether differing from the one under discussion.

So that,'if it be true that the dedication of the alley to public use occurred, as stated, it is unimportant to determine whether the action of the city council in passing the ordinance allowing the old alley to be vacated, be held valid or null, unless it be made to appear that some special injury in consequence of the deflection of the alley has accrued to the plaintiffs, evidence of which I fail to find in this record. And if, in cases of this sort, no palpable violation of a complainant’s right be shown, equity will not interfere. And it is the custom of courts of equity to refrain from the exercise of this extraordinary jurisdiction until the right, if apparently doubtful, be established at law. King v. McCully, 38 Pa. St. 76. And there are other conditions precedent •other constituent elements of the exercise of such unwonted jurisdiction not to be overlooked. The injury to the well established right must also amount to irreparable damage, incapable of being fully compensated by an action at law; a substantial, not an unimportant or trivial injury, not disproportionate to the relief sought, nor when; if the relief prayed for were granted, and the mandatory injunction should issue, the effect would be t'o inflict serious damage upon the defendants without doing .the plaintiffs any material or practical good, nor where the decree would operate oppressively or contrary to the real justice of the case.

In all cases like the present, courts of equity are guided by a wise and wholesome discretion in granting •or refusing an injunction, and will do no act and make no order which savors of oppression, or the arbitrary use •of its great power, and will always reflect, before acting, whether the exercise of that power is an appropriate method of redress under all the circumstances of the •case, and will attentively consider the comparative convenience or inconvenience which the granting or the refusal of the injunction will cause to the parties. It need scarcely be said that these positions find abundant support in the authorities. 2 Story’s Eq. Jur., sec. 949 a; Kerr on Injunctions (2 Ed.) 52; Fort v. Groves, 29 Md. 188; Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Fox v. Holcomb, 32 Mich. 494; Bankin v. Charless, 19 Mo. 490.

Applying the principles already announced, and the reasons given, they altogether preclude the plaintiffs from having any standing in a court of equity. The right of the plaintiffs, if regard be had to the findings and action of the lower courts, is doubtful; the damage which they will sustain, if any, is inconsiderable, while if their prayer were heard and granted, it would be disastrous in the extreme to the defendants, resulting in the practical destruction of their building, without any material advantages accruing to the plaintiffs.

The judgment should, therefore, be affirmed.

All concur.