GRAVES, J.
— The petition herein is in two
counts: (1) an action to enjoin the defendant for ob[50]*50structing a certain described portion of Seventh Street in the city of St. Joseph, and (2) an action in ejectment to recover the possession of that portion of said street. In the trial nisi the plaintiff had judgment upon both counts of the petition, and from such judgment the defendant has appealed. The first count charged the unlawful use and obstruction of said street by the defendant in that:
“The defendant has constructed and now maintains thereon its railroad tracks, turntables, roundhouses and water tanks and has erected and now maintains across said Seventh Street, as herein described, a fence by which all of said portion of said Seventh Street has been wholly áppropriated to its own use and benefit, and is now used by said defendant as its railroad yards.”
By its prayer said count thus concluded:
“Wherefore, plaintiff prays that the defendant, its agents, servants, and employees, be perpetually restrained and enjoined from entering upon or exercising any right or authority over said portion of said Seventh Street hereinbefore described, or doing any other act in said street tending to obstruct, in any way, the free and common use thereof, as a highway in the city of St. Joseph, and that it be enjoined and restrained from maintaining any obstruction on said street which will in any manner interfere with the use of said street, as it was laid out and established for the use of the public generally, and for its costs in this behalf expended.”
The, second count, as stated, is one in ejectment. The answer sets up an equitable estoppel, in this language:
“Comes now the defendant in the above entitled cause, and for its amended answer to plaintiff’s petition filed therein, admits that it is a corporation and admits that it does occupy the particular strip of [51]*51land in plaintiff’s petition described, in the manner and for the nses and purposes therein stated.
' “Further answering the defendant states that said strip of land is not now nor has it ever been used as a public street or highway by the city of St. Joseph or the inhabitants thereof; that it is inaccessible and wholly unfit for street or highway purposes and would not serve any purpose as a street if opened; that it has been occupied by the defendant in the manner and for the purposes stated in plaintiff’s petition for more than twenty-five years; that the defendant has erected upon said strip of land valuable and expensive improvements which are now and have been used in connection with its railroad shops and other facilities adjacent thereto for more than twenty-five years; that the defendant has during the entire period it has occupied said strip of land claimed to own the same as its absolute property, openly and adversely to plaintiff and all others; that its occupancy of said strip of land for the purposes stated has been with the knowledge, consent and approval of plaintiff.
“Defendant states that plaintiff stood by and invited it to expend and saw it expend large sums of money in erecting roundhouses, machine shops, terminal facilities and in making other improvements on said strip of ground and the grounds adjacent thereto, and that all of said facilities will be useless and defendant will be damaged in a sum in excess of five hundred thousand dollars if it is denied the use of said strip of ground; that plaintiff knew when said improvements were made that they would - be useless unless said strip of ground could be occupied by defendant; that both plaintiff and defendant treated said portion of Seventh Street the same as though it had been vacated when other streets in that immediate vicinity were vacated for the use of the de[52]*52fendant, and it is apparent that it was a mere oversight that said street was not formally vacated.
“Defendant states that if said strip of land was ever dedicated for public use as a street it has been abandoned by plaintiff as such street or highway, and plaintiff is now estopped to claim title to said strip of land as a public street or highway or for other purposes, and is estopped from complaining of or in any wise interfering with defendant’s occupancy of said strip of ground.”
The evidence introduced shows that South St. Joseph Addition to the city of St. Joseph was platted in 1858. That among the several streets in said addition were Sixth, Seventh and Eight Streets running north and south, said Sixth being to the west of Seventh Street. Running east and west, among other streets, were Duncan, Doniphan, Jackson, Scott, Pacific, Sycamore. In naming these streets we have begun with the one on the north and followed them in order to the south. Next north of Duncan Street is Monteray Street and next south of Sycamore is Hickory Street.
In January, 1887, the city of St. Joseph by ordinance duly vacated certain parts of Duncan, Doniphan, Jackson and Scott Streets and this ordinance reads in conclusion as follows:
“Section 5. The city reserves the right to repeal this ordinance and, without cost to the city, take possession of and reopen said street in case the St. Joseph Terminal Railroad Company shall fail to commence the’ construction of a roundhouse and machine shops upon said streets and the grounds adjoining the same within six months and complete the same in a condition for operation within two years after the date of the approval of this ordinance, or shall fail to maintain or operate a roundhouse and machine shops on said grounds.”
[53]*53These vacations left a clear field for defendant’s terminals, from Monteray Street on the north to' Pacific Street on the south. It is clear from the concluding section of this ordinance that the vacations were made for the purpose of having these terminals located in the city.
It would appear that Seventh Street was only platted as far north as Pacific Street. The defendant constructed ’ its terminals between Monteray Street on the north to Hickory Street on the south, and between Sixth and Eighth streets, although not running as far east as Eighth Street. In doing so the roundhouse was made to front on Pacific Street just east of Sixth Street and in front of the northern terminus of Seventh Street. A portion of the turntable in this roundhouse projected into Pacific Street. Tracks cross Seventh Street and Pacific Street in getting into this roundhouse. In Seventh Street, in addition to the tracks, there was constructed an ash pit and water tank, as a part of these terminals.
The cost of the plant was something like $600,000 and it has been bonded for $500,000, which bonds are secured by mortgage on this property, including these streets, both Pacific and Seventh, as well as the regularly vacated streets. This construction and this expenditure were shortly after the passage of the ordinance aforesaid and in compliance therewith. Later a private individual bought property on the west side of what is called Seventh Street, and began the agitation for opening that street, ■ and this suit was the outgrowth. The evidence shows that the opening of the streets is not a public necessity.
From the date of the plat to the date of the suit, the city has made no effort to improve these streets, in order to open them for public use.
Free access — add to your briefcase to read the full text and ask questions with AI
GRAVES, J.
— The petition herein is in two
counts: (1) an action to enjoin the defendant for ob[50]*50structing a certain described portion of Seventh Street in the city of St. Joseph, and (2) an action in ejectment to recover the possession of that portion of said street. In the trial nisi the plaintiff had judgment upon both counts of the petition, and from such judgment the defendant has appealed. The first count charged the unlawful use and obstruction of said street by the defendant in that:
“The defendant has constructed and now maintains thereon its railroad tracks, turntables, roundhouses and water tanks and has erected and now maintains across said Seventh Street, as herein described, a fence by which all of said portion of said Seventh Street has been wholly áppropriated to its own use and benefit, and is now used by said defendant as its railroad yards.”
By its prayer said count thus concluded:
“Wherefore, plaintiff prays that the defendant, its agents, servants, and employees, be perpetually restrained and enjoined from entering upon or exercising any right or authority over said portion of said Seventh Street hereinbefore described, or doing any other act in said street tending to obstruct, in any way, the free and common use thereof, as a highway in the city of St. Joseph, and that it be enjoined and restrained from maintaining any obstruction on said street which will in any manner interfere with the use of said street, as it was laid out and established for the use of the public generally, and for its costs in this behalf expended.”
The, second count, as stated, is one in ejectment. The answer sets up an equitable estoppel, in this language:
“Comes now the defendant in the above entitled cause, and for its amended answer to plaintiff’s petition filed therein, admits that it is a corporation and admits that it does occupy the particular strip of [51]*51land in plaintiff’s petition described, in the manner and for the nses and purposes therein stated.
' “Further answering the defendant states that said strip of land is not now nor has it ever been used as a public street or highway by the city of St. Joseph or the inhabitants thereof; that it is inaccessible and wholly unfit for street or highway purposes and would not serve any purpose as a street if opened; that it has been occupied by the defendant in the manner and for the purposes stated in plaintiff’s petition for more than twenty-five years; that the defendant has erected upon said strip of land valuable and expensive improvements which are now and have been used in connection with its railroad shops and other facilities adjacent thereto for more than twenty-five years; that the defendant has during the entire period it has occupied said strip of land claimed to own the same as its absolute property, openly and adversely to plaintiff and all others; that its occupancy of said strip of land for the purposes stated has been with the knowledge, consent and approval of plaintiff.
“Defendant states that plaintiff stood by and invited it to expend and saw it expend large sums of money in erecting roundhouses, machine shops, terminal facilities and in making other improvements on said strip of ground and the grounds adjacent thereto, and that all of said facilities will be useless and defendant will be damaged in a sum in excess of five hundred thousand dollars if it is denied the use of said strip of ground; that plaintiff knew when said improvements were made that they would - be useless unless said strip of ground could be occupied by defendant; that both plaintiff and defendant treated said portion of Seventh Street the same as though it had been vacated when other streets in that immediate vicinity were vacated for the use of the de[52]*52fendant, and it is apparent that it was a mere oversight that said street was not formally vacated.
“Defendant states that if said strip of land was ever dedicated for public use as a street it has been abandoned by plaintiff as such street or highway, and plaintiff is now estopped to claim title to said strip of land as a public street or highway or for other purposes, and is estopped from complaining of or in any wise interfering with defendant’s occupancy of said strip of ground.”
The evidence introduced shows that South St. Joseph Addition to the city of St. Joseph was platted in 1858. That among the several streets in said addition were Sixth, Seventh and Eight Streets running north and south, said Sixth being to the west of Seventh Street. Running east and west, among other streets, were Duncan, Doniphan, Jackson, Scott, Pacific, Sycamore. In naming these streets we have begun with the one on the north and followed them in order to the south. Next north of Duncan Street is Monteray Street and next south of Sycamore is Hickory Street.
In January, 1887, the city of St. Joseph by ordinance duly vacated certain parts of Duncan, Doniphan, Jackson and Scott Streets and this ordinance reads in conclusion as follows:
“Section 5. The city reserves the right to repeal this ordinance and, without cost to the city, take possession of and reopen said street in case the St. Joseph Terminal Railroad Company shall fail to commence the’ construction of a roundhouse and machine shops upon said streets and the grounds adjoining the same within six months and complete the same in a condition for operation within two years after the date of the approval of this ordinance, or shall fail to maintain or operate a roundhouse and machine shops on said grounds.”
[53]*53These vacations left a clear field for defendant’s terminals, from Monteray Street on the north to' Pacific Street on the south. It is clear from the concluding section of this ordinance that the vacations were made for the purpose of having these terminals located in the city.
It would appear that Seventh Street was only platted as far north as Pacific Street. The defendant constructed ’ its terminals between Monteray Street on the north to Hickory Street on the south, and between Sixth and Eighth streets, although not running as far east as Eighth Street. In doing so the roundhouse was made to front on Pacific Street just east of Sixth Street and in front of the northern terminus of Seventh Street. A portion of the turntable in this roundhouse projected into Pacific Street. Tracks cross Seventh Street and Pacific Street in getting into this roundhouse. In Seventh Street, in addition to the tracks, there was constructed an ash pit and water tank, as a part of these terminals.
The cost of the plant was something like $600,000 and it has been bonded for $500,000, which bonds are secured by mortgage on this property, including these streets, both Pacific and Seventh, as well as the regularly vacated streets. This construction and this expenditure were shortly after the passage of the ordinance aforesaid and in compliance therewith. Later a private individual bought property on the west side of what is called Seventh Street, and began the agitation for opening that street, ■ and this suit was the outgrowth. The evidence shows that the opening of the streets is not a public necessity.
From the date of the plat to the date of the suit, the city has made no effort to improve these streets, in order to open them for public use. The destruction of these tracks across Seventh and Pacific streets would destroy all egress and ingress to the roundhouse. In fact, the evidence shows that the opening [54]*54of either of these two streets would actually destroy and render useless all of defendant’s property.of the value of a half million dollars or more. At the time of the dedication, and also at the date of the vacation ordinance, Pacific Street was a deep gully or creek through which flowed a stream of water into the Missouri River to the west. Seventh Street from Pacific Street on the north to Sycamore Street on the south was washed out and impassable for travel.
Under these conditions, after the passage of this ordinance in 1887, the defendant constructed its terminals as aforesaid, expending this large sum of money, and all to the evident knowledge of plaintiff’s officers. At first the defendant used a trestle over Pacific Street, and filled up Seventh Street, but later it built a large culvert or sewer in Sixth Street, and filled up over the same, so that its tracks would thus cross, instead of crossing over the trestle. It is clearly inferable that both parties contemplated that the defendant would use both these streets at the time the vacation ordinance was passed. The streets had never been used from 1858 to 1887, and it is evident the parties looked upon them as abandoned, and for that reason did not include them in the vacating ordinance.
Other facts, if material, will be stated in the course of the opinion.
issue I. The present action only involves Seventh Street, but in oral argument it was asserted that dependent upon this case was one in the rear, involving Pacific Street. The two streets have been used as indicated in the statement. That is, the tracks which enter the roundhouse have to cross the, streets at their intersection.
We shall not discuss the matter of adverse possession, because not in this case. What is said in the answer about the defendant having-been in possession [55]*55for a great number of years is just an incidental fact in its real plea of equitable estoppel. Likewise, wbat is said of abandonment of tbe streets may be likewise classified. The answer taken as a whole presents a clean-cut case of equitable estoppel. That is the turning point in the case.
Equitable Estoppel. II. Courts apply with much caution the doctrine of equitable estoppel to municipal corporations in. matters pertaining to their governmental functions, and this is right. However, it will not do to say that the courts of this State never apply this rule of law to municipal corporations, as is seemingly urged by counsel for respondent. There are conditions under which the rule may be invoked as against municipal corporations. Vide Town of Montevallo v. Village School District of Montevallo, post, p. 217, and the cases therein cited.
If ever the doctrine of -equitable estoppel should be applied in a case brought by a municipal corporation, the one at bar is a case for such application. The reading of the last section of the ordinance vacating certain streets shows that the city was offering inducements to defendant to procure the establishment of its terminal facilities within the corporate limits of said city. The general plan of such terminals indicates that the city must have known and contemplated that defendant would have to use these two streets. The city had, under the then law, the power to vacate streets. The defendant had purchased abutting property on both sides of these two streets as well as the vacated streets. It is clear that the city was fully advised as to what improvements defendant expected to erect. The fact that these two streets were not included in the vacating ordinance, can only be accounted for on the theory that both the city and defendant were proceeding [56]*56upon the idea that these two platted streets had long since been disowned and abandoned by the city. It is apparent that the city, in the rightful exercise of its legal powers, was attempting to make the way clear for the use of all this property by defendant.
The long silence of the city cannot be accounted for upon any other theory. The city stood by and encouraged the defendant in the expenditure of more than one-half million dollars, all to the city’s benefit and up-building. The city stood silently by until this property was mortgaged to secure its bonds, and until those bonds were in the hands of innocent parties. For the city to win would be to destroy the security for these bonds. To permit the city by a recovery in this suit to destroy defendant’s valuable property is inequitable in the strongest and strictest sense.
The public rights should not be allowed to destroy vast private rights under the peculiar facts we have here. There are many cases where public rights, through the doctrine of equitable estoppel, have been forced to give way to the more equitable rights of private parties. Vide “‘Town of Montevallo” case, supra, for a citation of the cases. The doctrine of equitable estoppel should be applied in this case, and when applied the judgment nisi is wrong. Let the judgment be reversed and the cause remanded with directions to enter an appropriate judgment for the defendant. It is so ordered.
All concur, except Bond and Walker, JJ., who dissent in an opinion by Bond, J.
I.