source: Caselaw Access Project

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text:
    ELLA McKENZIE et al. v. CATHERINE E. DONNELL et al., Appellants.
    Division Two,
    December 10, 1907.
    1. FINDING OF FACTS: A special finding of facts is not necessary unless requested; and where there is no bill of exceptions, but by reference to the pleadings it is easily ascertainable what the court found as a basis of the decree, the judgment is not eirroneous because there was no finding of facts, nor is such finding necessary.
    2. RES ADJUDICATA: Ejectment: Accounting. Before any matter becomes nes adjudicata, even where it is for an accounting for rents which were not adjudicated by a former ejectment, it must have been tried and adjudicated.
    3. -: -: -: Rents: Barred. Rents had been adjudged in favor of plaintiffs against defendants up to the time of the decree in a formeir suit to set aside a deed under which defendants held, and that deed being set aside and the judgment affirmed on appeal and defendants refusing to deliver possession, plaintiffs sued their tenant alone in ejectment, who had been in possession only one year, and set up no claim for rents, and obtained judgment and ouster, and in this suit seek an accounting for rents that had accrued during the pendency of the appeal and for the time that defendants’ tenant was thereafter in possession, and specifically allege that the reason rents were not asked for in the ejectment was because all rents had been adjudged to plaintiffs against defendants in the first suit and defendants by the decree therein had been required to enter into an accounting with plaintiffs therefor, and because the tenant was insolvent. Held, that the suit in ejectment was no bar to a demand for rents in this suit for an accounting.
    4. -: -1: -: -: Splitting Cause of Action. Where plaintiffs included in their farmer equitable action all the rents and damages which had accrued up to the date of judgment, but did not and could not include rents which accrued during the pendency of defendants’ appeal, it is no splitting of their cause of action if they bring a subsequent suit for an accounting for the rents which accrued subsequently to that appeal, not even if after the judgment was affirmed on appeal they brought an ejectment against defendants’ tenant alone in which they asked for no irents, the suit for an accounting being one to enforce the first decree and for an accounting of matters accruing subsequent to the decree superseded by defendants’ appeal.

      5. -: -■ — : -: -: -: Equitable Execution. Such a suit is in the nature of an equitable execution issued on the judgment which had already determined plaintiffs’ right.
    6. SETTING ASIDE MORTGAGE: Condition Unperformed: Forfeiture. Where plaintiffs alleged that a deed made by their father to defendants was void on the ground that he was insane and that a deed of trust made by defendants to a bank was also void for the same reason, and the court sets aside both instruments, and invests the title in plaintiffs, and requires them, within ninety days, to pay to the bank the amount of the mortgage debt, and awards to the bank special execution against the land if not paid within that time, it is no concern of defendants whether the bank was paid within the designated time or not; and they cannot maintain the plea that plaintiffs’ petition in a subsequent suit for an accounting fo'r rents adjudged to them by the former decree, which accrued during defendants’ appeal, shows no equity because plaintiffs did not pay the bank the amount fixed by the decree.
    Appeal from Jackson Circuit Court . — Hon. Shannon ■ G. Douglass, Judge.
    Affirmed.

      E. P. Garnett for appellants.
    (1) Upon the face of the record the judgment is erroneous. There was no finding of facts upon which to base the judgment. It is well settled that the facts upon which a decree in equity is based must be found by the court. Labarge v. Chanvin, 2 Mo. 177; Robertson v. McCune, 128 Mo. 577. (2) Plaintiffs are not entitled to maintain a multiplicity of suits for the same subject-matter. One ought not to be vexed twice for one and the same cause. No rule of law is better settled than that the single cause of action cannot be split up in order that separate suits may be brought for the various parts of what constitutes one demand, and the rule is founded upon the plainest and most substantial justice. Wagner v. Jacoby, 26 Mo. 532; Railroad v. Frauble, 59 Mo. 355; Moran v. Plankington, 64 Mo. 337; Taylor v. Heitz, 87 Mo. 660. And our adjudications are in harmony with the great weight of authority in this State. Knowlton v. Railroad, 147 Mass. 606; Bairn v. U. S., 96 U. S. 430; Brandenberg v. Railroad, 13 Ind. 103 ; Bank v. Tracy, 141 Mo. 252; Railroad v. Sweet, 103 Mo. App. 276; Edruon v. Jones, 96 Mo. App. 83; Shaw v. Pollard, 84 Mo. App. 286. (3) The bill sets out that there is another suit pending for part of the same subject-matter, which suit was commenced before this one. That suit is a complete bar to this suit. “When two suits are brought at different times between the same parties for the same thing, that first brought occupies the ground, and that subsequently bought will be abated.” Walter Com. Co. v. Gileland, 98 Mo. App. 587; Ward v. Henry, 117 Mo. 530. The fact that plaintiffs did not sue for all that they claimed does not avail them. They cannot split up their cause of action. “Whatever form of action it adopted it was bound to sue for its whole cause of action at that time or stand estopped from afterwards suing for the portion purposely omitted.” Bank v. Tracy, 141 Mo. 262. Clearly upon its face the petition does not state a cause of action in equity. It is manifest that plaintiffs have a complete and adequate remedy at law by the suit in ejectment in which can be embraced a prayer for rents and profits and damages and wastes.

      Wash Adams and N. F. Heitman for respondents.
    (1) The petition certainly states a cause of action in equity. Cranor v. School Dist., 151 Mo. 119, and the statute therein quoted; Story’s Eq. PL (9 Ed.), sec. 429; Buchanan v. Smith, 75 Mo. 463; Root v. Woolworth, 150 U. S. 401; Haynie v. McAnally, 27 S. W. 431; O ’Hara v. Shepherd, 3 Md. Ch. 306; McQueen v. Farrow, 4 Mo. 212; McElroy v. Ford, 81 Mo. App. 500; Field v. Sanderson, 34 Mo. 542; Walsh v. Boise, 16 Mo. App. 231; Windham v. Kline, 72 Mo. App. 615; Davis v. Cahn, 96 Mo. App. 587. Under the allegations of the bill, it is plain that there was no adequate remedy at law. Hockaday v. Lawther, 17 Mo-. App. 636. The petition is lengthy because the former decree is lengthy, and because the Donnells disobeyed every part of it. Their lengthy and varied disobedience of this court is the direct and only cause of the length of the petition. (2) This court ordered respondents to pay the restitution money to the bank and they obeyed that order. This was alleged and found, and there is no bill of exceptions. This court granted respondents the privilege of ninety days after its decree in which to pay the restitution money — the year granted by the lower court having expired while the- Donnells were appealing to this court. In case of failure to pay in ninety days, the only penalty was that the bank was granted the right to an execution and a sale of the property and the respondents were to have the excess of the proceeds of such sale over the restitution money. This proves that no forfeiture was contemplated. Said year and said ninety days only suspended the bank’s execution that long — this and nothing-more. This court gave the bank the exclusive control of the execution, and before the ninety days expired Kansas City started to condemn two-thirds of the land, so that it could not be sold under said execution. The bank simply refrained from an execution, and got its restitution money out of the condemnation money. The decree gave the Donnells no control over the execution. The decree settles the result of bur failure to pay within the time. It was not forfeiture, but only gave the bank the right to sue out execution, to sell the land to satisfy its equitable lien for the restitution money. (3) There is nothing in the first point assigned in appellants’ brief because the decree shows a general finding of all the issues in favor of the plaintiffs. This is sufficient. The statute itself so provides. Sec. 695, R. S. 1899, Special findings of fact are not necessary unless requested. There was no request. Robinson v. McCune, 128 Mo. 587; Judge v. Booge, 47 Mo. 544; Gaines v. Co., 107 Mo. App. 532. (4) There is nothing in the second point in appellants’ brief for the reason that neither the subject-matter, the parties, nor the foundation of the Henry Ising ejectment suit was the same as in this suit. Hence, none of the authorities cited by appellants under their second point is applicable. Windham v. Kline, 77 Mo. App. 46. Said case holds that: “To make a matter res adjudicate/, there must be a concurrence of the four conditions following: Identity of the thing sued for; identity of the cause of action; identity of persons and parties to the action; identity to the quality of the persons for or against whom the claim is made.” Davidson v. Mayhew, 169 Mo. 258; State v. Jones, 82 Mo. 509; Richardson v. Adams, 4 Mo. 311.
   GANTT, J.

This is an appeal from a judgment of the circuit court of Jackson county for an accounting and to enforce the decree of this court rendered on the 12th of July, 1899, wherein the plaintiffs herein were plaintiffs in error and the defendants herein were appellants in a cross appeal.

The petition sets forth at length the bringing of the bill in equity by the plaintiffs, as the children and heirs at law of Jedediah E. McKenzie, to recover certain lands and set aside a deed of trust thereon and for an accounting on the ground that a certain deed of conveyance, to-wit, a deed of trust made by the said Jedediah McKenzie on March 15, 1875, to Charles H. Vincent, trustee for Patterson Stewart for $3,000, was invalid, because of the insanity of the said Jedediah McKenzie at the date of its execution, and that a certain trustee’s deed, made by the sheriff of Jackson county, under and by virtue of the power of sale contained in said deed of trust, to Catherine E>. Donnell, was invalid for the same reason, and that such proceedings were had that a decree was rendered by the circuit court of Jackson county in favor of plaintiffs on the 15th day of July, 1895, whereby it was adjudged that at the date of the execution of said deed of trust, said Jedediah was insane, and ordered and decreed that the said deed of trust of March 15, 1875, be set aside and for naught held. And that the trustee’s deed by the sheriff as aforesaid to Catherine E. Donnell should also be set aside and for naught held on account of the invalidity of the deed of trust under which said trustee’s deed was made. And that a certain other deed of trust given by the said Catherine E. Donnell and M. S. C. Donnell, her husband, to Oliver H. Dean, as trustee, for Israel B. Mason, of date July 29, 1886, and duly recorded in Jackson county, to secure a note of even date therewith for $15,000', which had been transferred and delivered to the Citizens’ National Bank of Kansas City, should also be set aside, and that a certain other deed of trust by the said Catherine E. Donnell and her husband to James S. Botsford, trustee, for George P. Ballingal, of date October 27, 1892, and for $500, and duly recorded in Jackson county, and which had been transferred to the Citizens’ National Bank of Kansas City, should also be set aside and for naught held. And it was further adjudged and decreed in the said action that the fee simple title to the above-described real estate should be and the same was thereby vested in the children and grandchildren of the said Jedediah McKenzie, the plaintiffs in this suit. It was further ordered and decreed that the defendants, Catherine E. Donnell and M. C. S. Donnell her husband, and the said Citizens’ National Bank, and the trustees in the said deed of trust and all persons claiming by, through or under them should be forever debarred and enjoined from having or claiming any right or title whatsoever to the said real estate adverse to the plaintiffs therein, the children and grandchildren of the said Jedediah McKenzie, and the title to said property was forever quieted in the said heirs. It is also alleged that the said circuit court charged the said Donnells with the rents and use and occupation of said real estate and for certain rock quarried out of said premises by the said Donnells during their occupation of the same, which the court found to be in the aggregate, up to the time of entering* the said judgment, $3,223, and on the other hand the court charged the said real estate with the purchase price paid by the said Donnell therefor, to-wit, $2,105, and also with the taxes thereon sinee the year 1877 up' to the time of said decree, with interest thereon, and with certain attorney fees paid by the said Donnell in resisting the condemnation of a part of said land for Twenty-third street and in resisting a certain other taxbill against said property for the grading of Locust street, in all amounting to $1,250, and for certain repairs thereon, the whole amounting in the aggregate to $11,113.14, and deducted from the said sum the said sum of $3,223 rents and interest thereon and rock quarried up to the time of the entering of the said decree, and found a balance of $7,890.14, and decreed the same as a charge against the plaintiffs on said real estate and ordered and adjudged that the same be paid to the Citizens’ National Bank within twelve months of the rendition of the judgment and to bear six per cent interest. It was ordered, adjudged and decreed that the defendants immediately deliver possession of the said real estate unto the plaintiffs. In default of payment of the said $7,890.14, within the 12 months allowed by the -court, it was decreed that the said real estate should be sold to satisfy the same, and out of the proceeds of said sale the sheriff should first pay the costs and expenses of said sale and no other costs, and next pay to the Citizens’ National Bank the said sum of $7,890.14, with interest thereon at the rate of six per cent per annum from the date of judgment until paid. Provided, however, that if the cost adjudged in said cause against said Catherine and M. S. C. Donnell had not been paid, on execution or voluntarily, at the time of the sale of the said land under said execution, then the amount of the said cost adjudged in said cause should be deducted from the said sum of $7,890.14 and the balance of said sum paid to the Citizens’ National Bank and, thirdly, the balance, if any, of the proceeds of said sale should be paid to the plaintiffs in this case. Plaintiffs were also charged with certain other items of costs, which are not necessary to be noted at this time. The plaintiffs filed a motion to- modify the said decree, which motion the court overruled and the plaintiffs excepted. The defendants also filed motions for new trial and in arrest of judgment and a motion to tax the costs against the plaintiffs, all of which motions the court overruled, and the defendants excepted. The plaintiffs brought their exceptions to this court by writ of error- and the defendants appealed. The circuit court made a further order in the cause whereby it permitted the said Donnells to pay any and all taxes general and special which might be levied or charged on the property in controversy pending their appeal except a certain special taxbill, which was then pending in the Supreme Court, and ordered that they be allowed all such payments as liens upon such property with interest thereon from the time of payments until the decree should be carried into effect if affirmed by the Supreme Court, and further decreed that the said Donnells should be charged with the actual rents of the said premises received by them during said appeal with interest thereon at the rate of six per cent, and for all moneys received by them for rock, if any, quarried by them on the said property during said appeal and until said judgment was affirmed and carried into effect. It is thereupon further alleged that on the 12th day of July, 1899, the Supreme Court of Missouri rendered an opinion in the said cause, which is reported in the 151 Mo. 461 to 472, and affirmed the said decree in all respects except that it disallowed the sum of $375 attorneys’ fees allowed the said Catherine Ei. and M. S. C. Donnell in defending the taxbills then in suit in the Supreme Court, thus leaving the amount with which said lands were to be charged in favor of the Citizens’ National Bank to be $7,515.14. It further appears that the Supreme Court modified the judgment of the circuit court so as to extend the time .to plaintiffs to pay said charge on said land, for ninety days after August 1, 1899. It is then alleged that afterwards, the city of Kansas City, Missouri, by the exercise of its power of eminent domain, took and appropriated for public use, to-wit, for the boulevard and park way known as North G-illham Road, about two-thirds of the said tract of land, leaving a tract uncondemned of the following description: “Beginning at the northwest corner of the southeast quarter of section eight, township forty-nine, range thirty-three, and running1 thence south 440 feet; thence east 196 feet; thence north 4401 feet; thence west 196 feet to the place of beginning.” And plaintiffs state that on the south part of this last-described tract there was at the rendition of said decree a frame house, which still remains on the said premises; that the said house had been rented by the said Donnells for ten dollars per month ever since the said decree; that after the rendition of the opinion in the Supreme Court, the plaintiffs requested the said Donnells to account for the said rent which had accrued since the rendition of the said decree and demanded possession of the same and the said Donnells promised to make an accounting and turn over the possession of said property, but delayed until a short time prior to the April term, 1903, of the circuit court of Jackson county, at which time the plain.tiffs brought an action in ejectment against one Henry Ising, who was then the tenant of the said Donnells residing in said house, and recovered judgment in the circuit court of Jackson county at the April term, 1903, for the recovery of the said house and the south 127 feet of said tract; that said judgment was rendered against the said Ising and the said Catherine Donnell, who had entered her appearance in said suit as a landlord of the said Henry Ising; that before the commencement of the said suit the defendants Donnell refused to account to the plaintiffs for the said rentals contrary to the terms of. the decree and still refuse to account for the same, and that the same amount to $960' with the interest thereon. It is also' alleged that the defendants Donnell also caused a lot of rock to be quarried out of said lands and received payment therefor and appropriated the same to their own use; that plaintiffs do not know the amount of the rock so quarried or the amount of money received therefor by the said Donnells, and prayed for an accounting of the amount of money so received for the said rock so quarried. It is also alleged that the said defendants Donnell have never paid any of the taxes on said land or any part thereof since the date of the said decree and that plaintiffs have paid all the taxes, state, county and city, that have accrued since the year 1877. It is further alleged that prior to the decision of the Supreme Court in the said appeal, Kansas City had commenced said proceedings to condemn a part of said land as above stated, and that said proceeding culminated in an award to plaintiffs as the owners of said land of the sum of $16,150 for the part of the said land so taken and that a benefit of $2,000 was assessed against plaintiffs in said proceedings against the tract of land which was not. taken; that said city afterwards paid plaintiffs for that part of said land, which was taken, and out of the moneys awarded plaintiffs for the taking of said land, plaintiffs paid the Citizens’ National Bank all the moneys which they were required to pay it by the decree of the circuit court and Supreme Court, and had in all other respects complied with the said decree as far as they were concerned. That at the time plaintiffs paid the said Citizens’ National Bank the amount which they were required to pay it by said decree, the said sum of $883.64 had not.been paid by the said Donnells or any one else. Plaintiffs allege further that at the time of the payment by plaintiffs of the amount decreed to the Citizens’ National Bank, a question arose as to the fund which should bear interest under the said decree on account of the failure of the said Donnells to pay the said $883.64, plaintiffs insisting that the said interest bearing fund was $6,631.50 and not $7,515.14, but the said bank fearing that under the said decree it would render itself liable to the said Donnells in case it settled with the McKenzie heirs, the plaintiffs herein, on the basis of permitting the interest bearing fund to' be $6,631.50 instead of $7,515.14, a stipulation was entered into whereby it was agreed that the difference arising between the parties from the different methods of computation aforesaid was $341.29, and that the said amount should be retained by the said bank, and that the bank would at once commence a proceeding to determine the rights of the parties thereto as well as the rights of Catherine E. and M. S. C. Donnell to said sum of $341.29, and the bank agreed that no charge should be. made against the parties or the said fund for counsel fees, save the court cost in said proceeding. It is then alleged that the bank had brought no suit to determine the rights of the parties to said sum of $341.29 in the hands of the said National Bank, and that the same belonged to the plaintiffs. The petition then prayed judgment that the bank pay over said money to plaintiffs and that the defendants Donnell show cause, if any, why the bank should not pay the same to the plaintiffs. There was a prayer then that the court require the said defendants Catherine E. and M. S. C. Donnell to make an accounting of all rents received by them for the house heretofore described since the 15th of July, 1895, up to the 20th of July, 1903, and also for all rock quarried on said land and all moneys received and appropriated by them for the rock so quarried. Plaintiffs further allege in their petition that the defendants Donnell in their answer to the suit which was determined in the Supreme Court, set up and pleaded the Statute of Limitations to defeat plaintiffs’ claim, and that said plea of the Statute of limitations was by said decree adjudged against the said defendants. Plaintiffs further allege that the defendants Donnell are now in contempt of said decree and in defiance thereto are setting up claims to the said lands adverse to plaintiffs and are still receiving and taking to their use all the benefits by way of rents of the said land. It is further alleged that when the plaintiffs brought their action of ejectment against the said Henry Ising, they did not ask for rentals for the reason that their remedy at law was inadequate, because the said Henry Ising was insolvent, and, moreover, had only been in possession of the said property as defined for about one year before the institution of this ejectment suit, and because there was no assurance that the said defendants Catherine E. and M. S. C. Donnell would enter their appearance in said ejectment suit and for the further reason that the obligation of the said defendants Donnell to pay said rentals had been adjudged and decreed by the said decree of the circuit court of Jackson county and affirmed by the Supreme Court, upon which decree the plaintiffs rely, and because the said Donnells had repeatedly promised to account for said rentals and did not refuse to do so until a short time before the institution of said ejectment suit. It is further alleged that the said Donnells are refusing to yield possession of said land and are threatening to appeal from the said judgment in said ejectment' suit. Plaintiffs state that they have no adequate remedy at law for the wrongs perpetrated against them by the said defendants. Wherefore they pray the court to make such orders and issue such writs of possession as to the court seem necessary to fully execute and carry out the foregoing decree of the circuit court as affirmed' by the Supreme Court, and for all other orders and judgments in the premises.

To this petition the Citizens’ National Bank filed its .answer and admitted that the plaintiffs had commenced and prosecuted their suit against the said Donnells and that the decree as set forth in the petition was duly rendered and was affirmed in the Supreme Court. It admits that Kansas City by eminent domain took that portion of the real estate in controversy in said action,' leaving the balance thereof as set forth in plaintiffs’ petition, and that in said proceedings there was awarded to the plaintiffs the sum of $16,-150, and the said lands were charged with a benefit of $2,000. Said defendant bank further admitted that it was paid the amount due it as provided by the. said decree, and that it retained the $341.29', according to the said stipulation referred to in the petition, and admitted that it had not brought suit to determine the ownership of the said $341.29, because of litigation between the said bank and the said Donnells, which was then pending, and alleged that it had made divers attempts to reach an adjustment with the said Donnells, and alleged that it should not be charged with any interest on the said sum as it had been ready at all times and is now willing to pay said sum in accordance with the decree of this or any other court which might lawfully adjudge the ownership thereof, and asks to be protected by the decree of the court.

The defendants Donnell demurred to said petition, which demurrer was overruled, and they thereupon filed their answer, in which they allege that the plaintiffs are not entitled to prosecute this suit against them, first, because it fully appears from the petition that all the matters complained of have been passéd upon and adjudicated by the circuit court of Jackson county and the Supreme Court of Missouri in the suit between the plaintiffs and the defendants in the case which culminated in the decree copied in plaintiffs’ petition, and all matters herein complained of were either fully adjudicated and determined in that suit, or should have been fully determined therein in order that the defendants should not be subjected to a multiplicity of suits growing out of the same matter. Second, because it appears from the face of the petition that the plaintiffs commenced another action in this court to recover possession of a part of the said premises, which was prosecuted to final judgment and appealed to the Supreme Court of this State where it is still pending undetermined, and that the plaintiffs claimed and obtained judgment therein for rents of the premises in question under the decree which was set out in their petition and that the rents so claimed accrued subsequent to the time for which the plaintiffs are claiming rents on said premises and that plaintiffs are estopped from now claiming the other portion of said rents in this' case and are not entitled to split their alleged cause of action and subject defendants to a multiplicity of suits. And defendants plead said prior suit in bar of any recovery herein. Third, defendants say in regard to the differences between the defendant bank and plaintiffs in regard to the sum of money plaintiffs claim said bank in the condemnation proceedings received and retained, these defendants never had any part in the alleged agreement, and not being parties to such agreement are not bound thereby in this proceeding; that the court in which such proceedings of condemnation were had was the proper tribunal to determine how the fund in court should be paid out; that these defendants and all others interested in said funds were parties to said proceedings and said court had full jurisdiction to determine the differences between all parties claiming said fund; that these defendants have never waived their rights to have said court pass upon the rights which they have to said fund, and they say this court has not jurisdiction to hear and determine the same. Fourth, defendants allege that the plaintiffs did not comply with the terms of the decree set forth in their petition and did not within the time required thereby pay to these defendants or to the defendant bank the money required to redeem said land and said time of payment has never been extended by any act or authority of these defendants and plaintiffs did not repay these defendants the amount of taxes and interest thereon, which were paid by defendants after the rendition of said decree as required by the terms of said decree; that the statement in plaintiffs’ petition that defendants had paid no taxes on the property since the judgment was rendered in said decree is not true, and they allege that they have paid large amounts of taxes since that time. Wherefore they say that the plaintiffs are not entitled to prosecute this action and they ask to be discharged with their costs.

‘ The plaintiffs filed a reply wherein they denied all the new matter alleged in the answer and again show to the court that by reason of the condemnation proceedings an agreement was entered into between the plaintiffs and the bank that the said bank should and would take out of the moneys awarded to plaintiffs in said condemnation proceedings, the amount due it by said decree, and would refrain from issuing an execution as allowed by the decree, and allege that under the terms of the decree the plaintiffs were required to deal entirely with the bank in the matter of paying off the restitution money provided for by said decree and plaintiffs did comply with said decree in all respects, and plaintiffs while not admitting that defendants have paid any taxes on said lands since the date of said decree say that if it is true that defendants have paid any such taxes, plaintiffs are willing that the defendants shall have credit therefor as an offset to the rents which defendants have been collecting and appropriating to their own use on the said land since the date of the said decree.

. The cause was heard at the October term, 1904, of the circuit court of Jackson county and a decree rendered that plaintiffs have and recover of and from the defendants Catherine E. and M. S. C. Donnell $482.-85 on account of rent collected and appropriated by said defendants of and from the house and premises described in plaintiffs’ petition, and interest thereon, the said sum being the balance due the plaintiffs after giving the defendants credit for all taxes paid by them on the land described in the petition and all repairs on said house and all other credits to which defendants are entitled, said rents having accrued after the decree which had been rendered by the circuit court and affirmed by the Supreme Court up to the first day of July, 1903. And also that plaintiffs have and recover of the said defendants $262.76, on account of moneys collected by the defendants and appropriated by them for rock quarried by the defendants out of plaintiff’s land described in the petition, together with the interest thereon from the first day of May, 1897, making a total of $382.-97, and it was also ordered and decreed that plaintiffs have and recover the $341.29 referred to in the petition as being in the custody of the Citizens’ National Bank under the stipulation set forth in the petition, and it is further ordered and decreéd that under the decree of the circuit court affirmed by the Supreme Court of Missouri the said Catherine E. and M. S. C. Donnell have no claims to the lands described in the petition and under said decree ought not to set up any claim to the lands or any part thereof adverse to the plaintiffs and that plaintiffs are entitled to the immediate possession of all of the real estate described in the plaintiffs’ petition except that part which was condemned and taken for a public park by Kansas City. It was further ordered, adjudged and decreed that the defendants Catherine E. and M. S. C. Donnell and all persons claiming by, through or under them or either of them, are hereby forever debarred and enjoined from having or claiming to have any title whatsoever to the real estate last above described adverse to the plaintiffs, the children and grandchildren of Jedediah E. McKenzie, or their heirs or assigns, and the title to the said last above-described real estate is forever quieted in the said McKenzie heirs. It is further decreed that the said Catherine Donnell and Mack S. C. Donnell deliver immediately possession of the following real estate in Jackson county described in plaintiffs’ petition: “Beginning at the northwest comer of the southeast quarter of section eight, township forty-nine, range thirty-three, thence running south 440 feet; thence east 196 feet, thence north 440' feet; thence west 196 feet to the place of beginning.” And the writ of possession was awarded to the plaintiffs and against the said defendants Donnell, and judgment for all the costs of the suit. A motion for new trial was filed in due time, heard and overruled, but as no bill of exceptions was filed in the canse it is apparent that there is nothing before this court for consideration save and except the record proper.

I. As to the objection that the judgment is erroneous because there is no finding of facts, we think it is without merit. Special finding of facts are not necessary unless requested and there were no requests in this case. When reference is had to the pleadings in the case, there is no trouble whatever to ascertain what the court found as a basis of its decree.

II. As to the insistence that there is another suit pending for a part of the same subject-matter, which suit had been commenced prior to this, we take it that this assignment of error must refer to the ejectment suit against Ising, the tenant of the Donnells. It is plain, we think, that the ejectment suit against Ising constituted no bar whatever for the bill in this case which calls for an accounting for the rents in accordance with the decree of the circuit court, which was affirmed by this court in 151 Mo. 431 to 472. It was specifically alleged in the petition that plaintiffs did not sue for the rents in the Ising case because those rents had been adjudged to the plaintiffs as against these defendants, and defendants required to enter into an accounting with the plaintiffs therefor, and for the further reason that the said Ising was absolutely insolvent and hence the action of ejectment afforded plaintiffs no> adequate remedy at law for those rents. In no sense could the judgment in the ejectment suit be regarded under all the facts pleaded in the petition as a bar to the plaintiffs’ right to an accounting for the rents by the defendants in accordance with the decree of the circuit court and this court. In order that any matter can be said to have passed in rem judicatam it must have been tried and adjudicated by the court; it is clear that no such issue was tendered to the circuit court in the ejectment case and consequently could not have been adjudicated by that court in that case. Moreover, defendants are in error as to the allegation of the petition. The petition does not allege that there is an appeal pending from the judgment in the ejectment case; it simply alleges that the defendants threatened an appeal, which is a very different proposition. The ejectment suit and the judgment therein present no bar to this suit, and besides in no event could plaintiffs have recovered from Ising the rents and profits for more than a year during which Ising occupied the premises as the tenant of the defendants.

Under this head, we take it there is no contention that so much of this suit as seeks an accounting of and from defendants Donnell for the rents receivedhy them pending their appeal to this court from the judgment of the circuit court of July 15,1895, which was affirmed by this court July 12,1899, and for the rock taken from the quarry on said land after said appeal was taken and before it was affirmed,-was and is res judicata, inasmuch as in the very nature of things said rents had not then accrued and said rock quarried, and therefore could not have been the subject of an accounting, or ascertained so that a judgment could have been rendered therefor. Only the rents accrued and the value of the rock quarried up> to the 'date of that judgment ceuld be and were included in that judgment, and had defendants not appealed and superseded that decree, so much of the present suit as seeks an accounting for the rents subsequent to that decree and the rock quarried since then would have no foundation. In Garland v. Smith, 164 Mo. l. c. 22, it was ruled by this court in Banc that, “Where the subsequent action is upon a different claim, the former judgment only bars those things which were in issue or included in the issue in the former action or suit, nor will the judgment bar another cause which might have been joined with the former cause of action but was not, and if different proofs are required to sustain two actions, the judgment in one is no bar to the other. ’ ’ [Cromwell v. County of Sac, 94 U. S. 351.]

But the defendants insist plaintiffs have split up their action and upon the familiar doctrine that this will not be tolerated they say plaintiffs upon their own petition have no standing in court. As we have already said, plaintiffs included in their first action all the rents and damages which had accrued up to the date of the judgment, but they did not and could not include rents which must accrue after the decree was entered and pending the appeal. This was no splitting up of a cause of action. It is a suit to enforce the first decree and for an accounting for the rents and rock quarried subsequent to the decree and while the decree was superseded by defendants ’ appeal bond. [Adams ’ Equity (8 Ed.), mar. p. 415 and- 416; Story’s Eq. PL, sec. 429, and cases cited; O’Hara v. Shepherd, 3 Md. Ch. 306.]

As was said by this court in Baumhoff v. Railroad, 205 Mo. l. c. 262, “the present proceeding is in the nature of an equitable execution issued on the judgment, already determining plaintiff’s right.” Plaintiffs had obtained a decree quieting their title to the lands in suit and the circuit court had stated and settled an account up to the date of the decree, including rents and rock quarried to that date, but' defendants appealed and gave bond and remained in possession. Obviously plaintiffs recovered nothing for these subsequent rents and' for the rock afterwards quarried. When plaintiffs asked for an accounting as to these and for possession of their lands they were met by defendants Donnells ’ refusal to account, and claim that plaintiffs had forfeited all the benefits of their decree by their failure to pay the balance which the court had decreed as a lien on the land to the bank in the time fixed by this court. The contention of defendants that plaintiffs show no equity in their bill because they did not pay the bank the amount fixed in the decree can avail them nothing, because the revesting of the title to their lands in plaintiffs was absolute and not conditional upon their raising the balance. The bank was simply given the right to issue an execution if not paid in the time specified, and defendants had nothing to do with that payment. By the decree plaintiffs were required to satisfy the hank and not the defendants Donnell. In their present suit they show they have entirely liquidated every claim held by the bank. The doctrine of strict foreclosure has nothing to do with the matter.

The decree finds ample basis in the pleadings and the bill brings the case within the jurisdiction of a court of chancery. The decree of the circuit court is in all things affirmed.

Fox, P. J., and Burgess, J., concur.


author: FOX, P. J.

text:
    JOHN K. CUMMINGS REALTY & INVESTMENT COMPANY, Appellant, v. DEERE & COMPANY.
    Division Two,
    December 10, 1907.
    1. VACATING STREET: Power. The Municipal Assembly and the mayor of St, Louis have power by ordinance to vacate a part of a public street, namely, a strip fifteen feet wide on one side of the street.
    2. -: Injunction: Effect of Pleading: Public Nuisance. A petition charging that defendant is obstructing a public street and threatening to appropriate fifteen feet of it to its own use, and asking that defendant be enjoined from so doing, must be considered as intending to charge that the defendant is threatening to do such unlawful acts respecting the street as would constitute a public nuisance.
    3. -: -: -: -: Void Ordinance. And if the city ■ordinance vacating the public highway is void and the public nuisance is properly charged and plaintiff avers and shows he is specially injured beyond the public generally and other facts which authorize him to maintain suit to have the nuisance abated, the nuisance will be abated.
    4. PUBLIC NUISANCE: Insufficient Allegations. But a petition, whose object is the abatement of a public nuisance, namely, the appropriation by a private corporation of fifteen feet of a public street vacated by a void ordinance, which does not charge that plaintiff is the owner of property abutting on the part of the street vacated, and does not charge that plaintiff’s property is subjected to special injury different from and above that other property in the neighborhood similarly situated is subjected to by the public nuisance, does not state a cause of action. To entitle a private corporation to maintain a suit to abate a public nuisance it must be made to appear that it suffers or will suffer an injuiry peculiar to itself, that is to say, an injury over and above and different in kind from that suffered or to be suffered by the public generally. In such case a private corporation is to be considered an individual.
    5. -: -: Threatened Injury: Injunction. And the rule is the same whether the petition seeks to recover damages for an existing public nuisance, or to restrain by injunction the doing of acts which will constitute a public nuisance. In either case the public nuisance cannot be abated in the suit of a private individual as plaintiff unless he both charges and shows some injury special and peculiar to himself.
    6. -: -: More Than Other Property. An allegation that plaintiff’s property will be injured more than any other property in the city does not allege any injury peculiar to plaintiff.
    7. VACATING STREET: Void Ordinance: Injunction: Necessary Parties. An injunction will not lie to restrain the enforcement of a city ordinance vacating a public street on which plaintiff’s property does not abut, although an inconvenience in common with all other persons may be entailed upon him by the carrying out of the ordinance. In order to entitle plaintiff to injunctive relief it devolves upon him to charge and prove that he owns property abutting on the part of the street vacated.
    Appeal from St. Louis City Circuit Court. — Row. O’Neill Ryan, Judge.
    Affirmed.

      M. MoKeag and C. S. Cummings for appellant.
    (1) Plaintiff’s position is that the street in question was, at the time of the passage of the ordinance relied upon by defendant, a public highway, the property of the State, and held by the city of St. Louis only as trustee; that the provision of the charter, giving to the Municipal Assembly the power to “vacate, alter, widen, extend, or pave,” was only intended for the improvement of the use of the street for public travel, for the public generally, and, if not needed for traffic, to vacate; that the dedication of this particular part was more especially for those that would purchase lots in the subdivision; that the charter never intended to empower the Municipal Assembly to vacate a part of the street or make it narrower. No power is given to do so, or ever was intended. In this instance, under guise of vacation, its intention was plainly to sell and dispose of a part of the street to a private enterprise for private purposes, which is the effect of this ordinance. The vacation was not such a one as the charter required, and for that reason the actions of the Municipal Assembly and the Mayor, in the passage of this ordinance, were ultra vires. (2) The motives of the Municipal Assembly will be presumed according to what they accomplish, that which resulted and which follows as the natural and reasonable effect of the ordinance. This effect is that it is a sale of a part of the street. The city can not do indirectly what it can not do directly. (3) By this ordinance, if held to be valid, the Municipal Assembly loses entire control over it. If, at a future day, the city authorities would find it necessary to reopen this part of said street, it would have to condemn it and pay defendants therefor, and, if such were the case, plaintiff’s property would fall within the district as being benefited and have to pay its share of the damages. All this matter has been reviewed in Cummings y. St. Louis, 90 Mo. 259, which case has never be'en overruled, and covers the very subdivision now in controversy and the principles of a trustee selling. This Cummings case has been affirmed in all its features in State ex rel. v. St. Louis, 161 Mo. 383. (4) It is further submitted that the ordinance in its present form is a violation of section 13 of article 3 of the city charter, inasmuch as it contains more than one subject, which are not clearly expressed in its title. The title is merely to vacate. Sec. 1 of the ordinance. This relates solely to vacation. Ordinance 21285 relates to and gives an option to certain property-owner or owners on the south side of Monroe street. This section consequently gives the property-owners on the south side of Monroe street the power to put this ordinance into operation, and giving to these and delegating municipal power to them to say whether said ordinance ever should become a part of the municipal law. Glaessner v. Brew. Assn., 100 Mo. 580; Lockwood v. Railroad, 122 Mo. 86; State v. Murphy, 134 Mo. 348; Gang, etc., Mfg. Co. v. Railroad, 113 Mo. 308; Railroad v. Mills, 85 Mich. 634; Brumit v. Virginia, etc., Ch, 106 Tenn. 124; Lafayette v. Jenner, 10 Ind. 74; Cereghino v. Railroad, 26 Utah 467.

      .Seneca N. S S. G. Taylor for respondent.
    (1) The position of appellant, that the title of the act does not sufficiently disclose its purpose, and that it contains more than one subject, is untenable. Hannibal v. County of Marion, 69 Mo. 571; State ex rel. v. Ranson, 73 Mo. 78; State ex rel. v. Shepherd, 74 Mo. 310; State v. Blackstone, 115 Mo. 427; State ex rel. v. Slover, 134 Mo. 10; Lynch v. Murphy, 119 Mo. 170; Ewing v. Hoblitzelle, 85 Mo. 71; State ex rel. v. Bronson, 115 Mo. 271; State ex rel. v. Hegge, 135 Mo. 112; State ex inf. v. Ins. Co., 152 Mo. 4; O’Connor v. Railroad, 97 S. W. 150. (2) The power being express and absolute, it was for the Municipal Assembly and the Mayor to decide whether the street or part of it should be kept open or vacated, not for the courts. State v. Clarke, 54 Mo. 36; Railroad v. Springfield, 85 Mo. 677; Glasgow v. St. Louis, 107 Mo. 198; Christian v. St. Louis, 127 Mo. 109; Heinrich v. St. Louis, 125 Mo. 424; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560, 156 Mo. 344. (3) Injunction will not lie to restrain the enforcement of a city ordinance vacating a street when the petition does not allege that plaintiff is the owner of a lot abutting on the part of the street so vacated. Bailey v. Culver, 84 Mo. 531; Rude v. St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85; Glasgow v. St. Louis, 107 Mo. 202; Heinrich v. St. Louis, 125 Mo. 424; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560,.156 Mo. 353. (4) To enable plaintiff to maintain this action its damage must be special and peculiar to it and diff erent in kind and not merely in degree from the injury sustained by other members of the community. (5) If plaintiff has been unlawfully injured it has a complete and adequate remedy at law. Therefore, injunction will not lie. Heinrich v. St. Louis, 125 Mo'. 424; Christian v. St. Louis, 127 Mo. 1091; Knapp', Stout & Co. v. St. Louis, 153 Mo. 575.
   FOX, P. J.

This cause is brought to this court by appeal on the part of the plaintiff from a judgment of the circuit court of the city of St. Louis dismissing its bill in equity praying for injunctive relief against the defendant. To fully appreciate the nature of this proceeding and the legal propositions involved it is well to reproduce the petition and answer. The petition, omitting formal parts, is as follows:

“Plaintiff states that it is a corporation duly incorporated under the laws of Missouri, that the defendant is also a corporation incorporated under the laws of the State of Illinois.

“Plaintiff-further states that Wm. Chambers, W. Christy and Thomas "Wright were jointly owners in fee simple of a large tract of land, which was then located in the county of St. Louis, but which is now, by the extension of the limits of the city of St. Louis, lying and being in the said city of St. Louis, Missouri; that on the 29th day of June, A. D. 1816, the said owners caused the same to be platted and laid out in lots, streets and alleys and filed a plat of said lands and lots and streets and alleys and dedicated the said streets and alleys to public use and more especially for the use of those who would become purchasers and owners of lots-or parcels of land in said lands so laid out and platted; that the said owners caused the said plat and dedication to be duly recorded in the recorder of deeds ’ office of the then county of St. Louis in Plat Book 1, vol. 1, page 40, to which plat reference is made for the purpose of locating the property owned by the plaintiff and the streets and alleys as laid out and dedicated by the said owners to public use for the especial benefit of the prospective purchasers of said lots in said tract of land.

‘ ‘ Plaintiff further states that it is the owner in fee simple of a part of said lands, so laid out by said owners in their said addition and sold after the dedication of the streets on said plat; that it acquired said lots by mesne conveyances from the said owners and improved the same for dwelling purposes, which lots are more particularly described as follows, to-wit: A lot fronting on Monroe street, fifty-two feet and six inches by an irregular depth of one hundred and thirty-seven feet 8% inches on the west line of Eleventh street; bounded on the north by Monroe street, formerly Washington street, designated on said plat, and east by Eleventh street, formerly designated on said plat as Sixth street.

“Plaintiff further states that Monroe street as dedicated by the said Wm. Chambers, W. Christy and Thomas Wright has been used as a public highway for more than thirty years last past from Second street up to and past the plaintiff’s property, it being as dedicated by said persons sixty feet in width. That the defendant is now claiming the right to divert a portion of Monroe street from the uses and purposes to which it was dedicated for a public highway, and threatening to appropriate it to its private use and place permanent obstructions thereon, so that it cannot be used by the public generally on the following part of said Monroe street, to-wit: A strip of ground fifteen feet in width extending along the south side of Monroe street from the east line of Broadway to the west line of Second street.

“Plaintiff further states that if the defendant be permitted to carry out its purpose and convert said part of said street to its private use and benefit and to other and different uses and purposes than those designated and intended by the said "Wm. Chambers, W. Christy and Thomas Wright, the plaintiff’s property will be greatly damaged and will also depreciate in value, more especially than the general property in the city of St. Louis, being located on said Monroe street, near to where the obstruction and permanent diverting is threatened to occur and be placed by the defendant.

‘ ‘ Plaintiff further states that it is entirely remediless at law, that the city of St. Louis, the trustee upon which rests the duty to preserve the street as aforesaid for public use, is now aiding and attempting to further the defendant in its unlawful purpose and contemplation of diverting the said part of said street to its private use.

“Wherefore, your petitioner prays for a decree, that the defendant be enjoined and restrained from exercising any right or authority over the said part of Monroe street, hereinbefore described, which would be inconsistent with the uses and purposes for which it was dedicated, and that it be enjoined and restrained from erecting or placing any obstruction on said street or any part thereof which will in any manner interfere with the use of all parts of said street, as it was laid out, by the public generally, and for its costs in this behalf incurred. ”

To this petition the defendant interposed the following answer:

“Comes now the defendant in the above-entitled cause, and for answer to plaintiff’s petition herein, denies each and every allegation therein contained.

“Further answering this defendant avers that it is the owner-in fee simple of- all that part of City Block No. 318, fronting northward upon Monroe street, extending from the east line of Broadway to the west line of Second street, in the city of St. Louis, and State of Missouri; that the- property in said locality has become greatly deteriorated for residence purposes, or for any other purpose other than manufacturing business, and has been in that condition for several years last past. That in the year 1903, defendant was about to erect, and did begin the erection of a large manufacturing establishment upon said block, extending to the south line of said Monroe street, between said Broadway and Second street, which manufacturing establishment when completed will furnish employment for several hundred employees, thereby building up' said part of the city, and thereby enhancing the value of defendant’s property for revenue purposes, and increasing the income of the city of St. Louis, by reason of enhanced taxes upon its said property.. That in order to utilize defendant’s said land and the manufacturing establishment which it is erecting thereon, it became necessary to lower the grade of a fifteen-foot strip immediately north of defendant’s said property, and which before the passage of the ordinance hereinafter' specified, was a part of said Monroe street mentioned in plaintiff’s petition.

“That in the month of November, 1903, the Municipal Assembly of the city of St. Louis passed a city ordinance vacating a strip of ground fifteen feet in width, extending along the south side of Monroe street from the .east line of Broadway to the west line of Second street, which ordinance was to take effect upon the payment of three thousand dollars into the city treasury by the owners of the property on the south side of Monroe street from- said east line of Broadway to the west line of Second street, and that subsequent to the passage of city ordinance, this defendant did pay into said city treasury said sum of three thousand dollars in pursuance of the terms of said ordinance, and thereupon said fifteen-foot strip, being the one mentioned in plaintiff’s petition, became vacated and became the property of this defendant; that said city ordinance is in words and figures as follows, to-wit:

“ ‘ORDINANCE.

(21285.)

“ ‘An ordinance to vacate fifteen feet on the south side of Monroe street between Broadway and Second street.

“ ‘Be it ordained by the Municipal Assembly of the City of St. Louis, as follows:

“ ‘Section One. A strip of ground fifteen feet in width, extending along the south side of Monroe street, from the east line of Broadway to the west line of Second street, is hereby vacated as a public thoroughfare and surrendered ■ to the owners of the land in city block three hundred and eighteen respectively, contiguous to said strip.

“ ‘Section Two. This ordinance shall not take effect unless and until the sum of three thousand dollars is paid into the city treasury by the owner or owners of the property on the south side of Monroe street from the east line of Broadway to the west line of Second street, said sum to be the absolute property of the city of St. Louis.

“ ‘Approved November 17, 1903.’

“Defendant further avers that power and authority existed in the Municipal Assembly of the city of St. Louis, with the approval of the Mayor, to pass said city ordinance, and that the sum paid by said defendant was the full value of said strips of ground, and said three thousand dollars inured to the benefit of said city of St. Louis.

“Wherefore, having fully answered, defendant prays to be hence dismissed with its costs'.”

The plaintiff filed a demurrer to certain portions of the answer of the defendant, designating the grounds of such demurrer. This demurrer was overruled by the court and the plaintiff filed an amended reply denying each and every allegation and new matter set up in defendant’s answer as a defense to plaintiff’s cause of action, and as ■ a further reply to defendant’s answer it was averred that the pretended ordinance was ultra vires and void, assigning among the reasons that the title to the ordinance contained more than one subject and the subject of the title of the ordinance was not clearly embraced in the title. It was further charged that the ordinance was fraudulently procured under the guise of vacating a street or part of a street, and that the purpose of the ordinance was to sell and dispose of the part of the street heretofore indicated.

For the purpose of shortening the proof at the trial of this cause the following state of facts was admitted:

“First — That William Chambers, W. Christy and Thomas Wright were joint owners in fee simple of a large tract of land, which was then located in the county of St. Louis, but which is now, by the extension of the limits of the city of St. Louis, a part of the city of St. Louis, and State of Missouri, and that on the 29th day of June, 1816, the said owners caused the same to be platted and laid out with streets and alleys, dedicated to- the public use; and that said plat was duly recorded in the office of the recorder of deeds of the then county of St. Louis, in Plat Book 1, volume 1, page 40, and that the certified plat hereto annexed as ‘Exhibit A’ is a true copy of said plat and dedication.

“It is further admitted that both the plaintiff andi defendant are corporations, as alleged in the petition filed in said case.

“It is further admitted that the plaintiff is owner in fee simple, and in possession of the following described lots or parcels of land, which are a part of the land covered by said plat and dedicated, to-wit:

“A lot fronting on Monroe street, fifty-two feet and six inches, by an irregular depth of one hundred and thirty-seven feet, eight and one-half inches, on the west line of Eleventh street, bounded on the north by Monroe street, formerly Washington street, designated in said plat, and east by Eleventh street, formerly designated on said plat as Sixth street, but said Sixth street as shown by said plat is now known and designated as Eleventh street, in the city of St. Louis and State of Missouri.

“It is further admitted that Monroe street on said plat, as dedicated, was called -Washington street, but is now known as Monroe street, and that the same has been used as a public highway for more than thirty years last past from Second street up to and past the plaintiff’s property, and that said Monroe street was a street sixty feet in width.

“It is further admitted that the defendant was the owner, in fee simple, of all that part of City Block No. 318, fronting northward upon Monroe street and extending from the east line of Broadway to the west line of Second street, of the city of St. Louis, and State of Missouri, and was, at the time of the passage of the ordinance mentioned in the pleadings, and it had been such owner for a period of about two- years before the passage of said ordinance.

“It is further admitted that both plaintiff and defendant herein obtained their title by mesne conveyances from William Chambers, W. Christy and Thomas Wright, who were the owners of said property at the time of the laying ont and dedicating the same on the 29th day of June, 1816.”

■ In addition to this agreed statement of facts the plaintiff introduced John K. Cummings, who testified that he was living on Monroe street; that it was only three blocks west of the block where the strip was to be taken off Monroe street by vacating that width on Monroe street. He also stated that by the taking off of said street his property would be depreciated in value. There were other witnesses introduced whose testimony tended to show that if the fifteen feet of the street as heretofore mentioned was vacated there would hardly be room for a wagon going either way, and after the necessary space would be used for sidewalks large stake wagons could hardly pass each other. There was other testimony tending to show that there was a good deal of travel on Monroe street and that the vacation of it as sought by the ordinance would inconvenience those who were in the habit of using it, or wanted to use it.

The defendant introduced the .ordinance as set forth in the answer; also introduced testimony showing the payment of the three thousand dollars into the city treasury; then introduced in evidence a deed dated February 28, 1903, by which the defendant acquired title to the real estate extending from Broadway to Second street and fronting north on Monroe street contiguous to the fifteen feet vacated on the south side of Monroe street by the ordinance in question.

This was substantially all the evidence introduced at the trial. The cause was submitted to the court and on August 24, 1904, the court rendered its judgment and entered an order dismissing plaintiff’s bill for an injunction. Timely motion for new trial was filed and on the 26th day of October, 1904, this motion was overruled. From the order and judgment made in this cause plaintiff, in due time and proper form, prosecuted its appeal to this court and the record is now before us for review.

OPINION.

In this cause, as indicated by the record, plaintiff seeks to enjoin the defendant from placing- any obstruction or building upon a strip of ground which formerly constituted a part of Monroe street, which the city of St. Louis, by the ordinance as heretofore indicated, undertook to vacate. This proceeding is mainly predicated upon the theory that the plaintiff is a property-owner in the city of St. Louis and that the fifteen feet of ground sought to be used by the defendant constitutes a part of a public thoroughfare and that the ordinance passed by the city council and approved by the Mayor is void, and that the vacation of that portion of the street and the occupancy of it by the defendant is injurious and depreciates the value of the property of the plaintiff.

It is conceded that the plaintiff is not an abutting property-owner upon the street a part of which was sought to be vacated; that this property which is alleged to' be damaged by reason of the placing of the obstructions and buildings upon the strip of fifteen feet, which was vacated, is situated a distance of three blocks from the part of the street which was sought to be vacated by the action of the city council with the approval of the Mayor.

At the very threshold of the consideration of this cause we are confronted with the proposition as to whether or not under the allegations in the petition and the disclosures of the facts upon the trial the plaintiff is in a position to maintain this proceeding for injunction to restrain the occupancy of the strip of land which formerly constituted a part of Monroe street, which the city council by ordinance, duly approved by the Mayor, sought to vacate.

I.

That the Mayor and Municipal Assembly of the city of St. Louis possessed the power to establish, open, vacate or alter the streets and avenues, etc., in said city cannot be questioned. Section 26 of article 3 of the charter provides, that “the Mayor and Assembly shall have power within the city, by ordinance not inconsistent with the Constitution or any law of the State or of this charter .... to .establish, open, vacate, alter, widen, extend, pave or otherwise improve and sprinkle all streets, avenues, sidewalks, alleys, wharves, and public grounds and squares, and' provide for the payment of the costs and expenses thereof in the manner in this charter prescribed.”

II.

That the Mayor and Municipal Assembly, by the enactment of ordinance No. 21,285/ as heretofore indicated in the statement of this cause, undertook and sought to vacate the strip of ground involved in this proceeding also cannot be questioned. Section one of that ordinance expressly provides that “a strip of ground fifteen feet in width, extending along the south side of Monroe street, from the east line of Broadway to the west line of Second street, is hereby vacated as a public thoroughfare and surrendered to the owners of the land in city block three hundred and eighteen respectively, contiguous to said strip.”

It is- not contended in this proceeding that the plaintiff is an abutting owner of property, or that his property is subjected to special injury different from that other property in the neighborhood, similarly situated, is subjected to. In our opinion, upon the disclosures of the record, the plaintiff is not entitled to the injunctive relief prayed for in its petition. If the plaintiff seeks to maintain this equitable proceeding to restrain the threatened unlawful acts alleged in the petition, it must be upon tbe theory that, according to the earnest contention of the appellant in the brief before us, the ordinance vacating the strip of ground in Monroe street is void and that the defendant threatens to do such acts respecting the occupancy of such street and place such permanent obstructions upon such public thoroughfare as would in law constitute a public nuisance. In fact we see no escape from the conclusion from the allegations in the petition that appellant intends to charge that the defendant is threatening to do such unlawful acts respecting such street as would constitute a public nuisance. The petition upon this subject avers that “the defendant is now claiming the right to divert a portion of Monroe street from the uses and purposes to which it was dedicated for a public highway, and threatening to appropriate it to its private use and place permanent obstructions thereon, so that it cannot be used by the public generally on the following part of said Monroe street, to-wit: A strip of ground fifteen feet in width, extending along the south line of Monroe street from the east line of Broadway to the west line of Second street.”

It must be conceded that if the insistence of the appellant is correct and that the ordinance undertaking to vacate part of Monroe street is void, then there can be no dispute that the acts complained pf in the petition, in which it is averred what the defendant is threatening to do, would, under the well-settled rules of law applicable to the subject of nuisances, constitute a public nuisance. In effect the charge is that the defendant threatens to take possession of part of a public thoroughfare dedicated to the public and place thereon permanent obstructions. This beyond question, if the allegations are true, would constitute a public nuisance. But aside from this, conceding for argument’s sake that the ordinance which undertakes to vacate the fifteen feet of ground in Monroe street is void, and that the defendant is threatening to commit such unlawful acts as would amount to a public nuisance, does the plaintiff’s bill embrace all the essential allegations necessary to • constitute a cause of action ‘ and entitle it to the equitable relief sought? We have reached the conclusion that it does not. Upon the theory now under discussion, that this proceeding is to restrain the commission of such acts respecting a public thoroughfare as would in law amount to a public nuisance, the plaintiff in its petition does not show that it has suffered or will suffer any damage peculiar to itself. The rule of law applicable to the maintaining of actions by individuals respecting injuries or threatened injuries resulting from public nuisances, is no longer an open question in this State, and in the case at bar the plaintiff must be treated as an individual, for it is under the law an artificial person. In Na-gel v. Railroad, 167 Mo. 89, the plaintiff sought to enjoin defendants from constructing a street railway in Hamilton avenue in St. Louis. An analysis of the petition in that case demonstrates its similarity to the petition in the case at bar. It was charged in the petition that the ordinance was illegal and void on the ground that it was fraudulently and corruptly passed by the Municipal Assembly of said city. Then followed the allegation that the defendants were about to unlawfully and forcibly enter in and upon said Hamilton avenue adjacent to and in front of the said real estate property of plaintiff, for the purpose of constructing and operating a street railway in and upon the said Hamilton avenue, and have hauled and deposited rails and ties, or are about to deposit rails and ties upon the surface and have dug up or about to have dug up the surface and tear up and remove the paving from said Hamilton avenue, and have or about or threaten to occupy and obstruct said avenue with horses, men, timbers, street car tracks, street cars, electric wires and poles, and other obstructions, and that the accomplishment of such purpose would temporarily and permanently impair the use of said Hamilton avenue as a public thoroughfare, thereby preventing these plaintiffs from going to and from their respective real estate property over and along said Hamilton avenue, and thereby greatly depreciating the value and damaging their respective real estate property and their personal property to the great and irreparable injury to plaintiffs’ said property. It is manifest under the petition in that case that the plaintiffs were proceeding upon the theory that the doing of the threatened acts by the defendants would constitute a public nuisance. This court, speaking through Valijant, J., adhering to the well-settled rule that in cases of that character the petition should allege that by reason of the acts about to be committed the plaintiffs would suffer some damage peculiar to themselves, thus stated the law applicable to the sufficiency of the petition in that case: “The plaintiffs in their petition do not show that they have suffered or will suffer any damage peculiar to themselves. They do say that the defendants, preparatory to constructing the railroad, are depositing rails and ties and are tearing up the street and obstructing its use-, etc., and ‘thereby preventing these plaintiffs from going to and from their respective real estate property over and along said Hamilton avenue,’ etc. But those statements relate to the inconvenience resulting in the necessary work of construction and are such as result in every street construction. The damage resulting from the condition does not entitle the plaintiffs to an injunction of the kind sought in this suit.”

In Baker v. McDaniel, 178 Mo. 147, there was in judgment before this court the proposition of the right of an individual to maintain an action for injuries resulting from a public nuisance, and it was there expressly ruled by this court that to enable plaintiff to maintain an action of that character, resulting from a public nuisance, it was necessary to establish that there was special damage sustained by reason of such nuisance over and above the injury which the community at large suffered. All of the authorities upon the subject of actions concerning private and public nuisances were reviewed and it was announced that the true rule to be deduced from all the authorities was that as to private nuisances there is no question as to the proper exercise of the power of courts of equity in affording full and complete relief, but as to a public nuisance it was essential and should be made clear that some special injury was occasioned to the individual, and it was there announced that in cases of a public nuisance, where the injury complained of was a continuing one and that some special injury was occasioned to the individual, courts of equity might exercise their power and afford relief, but that this power in cases of public nuisances was usually exercised at the instance of the public and not private individuals.

In Smiths v. McConathy, 11 Mo. l. c. 522, Judge Napton, in discussing this question, said: “In an action for a private nuisance, it is not necessary to allege or prove any special damage. In a private action for a public nuisance, such allegations and proofs are necessary. No one individual can maintain an action for a public nuisance, unless he has sustained some special damage from such nuisance, over and above the injury which the community at large suffer.”

In Thompson & Son v. Macon City, 106 Mo. App. 84, a similar ruling was made and it was there held, in a suit by individuals for damages resulting from obstructions in a public street, that it was essential to show that plaintiffs had sustained damages of a different kind from that suffered by others along the street within the limits of the work, and the mere fact that they may have suffered more than some others did not alter the rule that in order to entitle them to damages they must have sustained injuries special to themselves and different in kind from others, citing in support of such holding Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92; Rude v. St. Louis, 93 Mo. 408; Ruckert v. Railroad, 163 Mo. 260; Nagel v. Railroad, 167 Mo. 89.

It may be said as to the cases of Baker v. McDaniel, Smiths v. McConathy, and Thompson & Son v. Macon City, heretofore cited, that those were actions concerning the commission of acts which constituted a nuisance and where the nuisance was in existence, and that in the case at bar this action is to prevent the doing of acts which in law would amount to a nuisance. In our opinion it must logically follow that the same principle applicable to the cases cited' must govern and control the case at bar. If it is essential where an individual seeks a recovery for injuries resulting from an existing public nuisance, to allege and prove that he has suffered special damages of a different ldnd and character to those similarly situated, we are unable to see how it is not equally essential, if he undertakes to prevent the doing of acts, which in law would amount to a public nuisance. In Nagel v. Railroad, supra, the averments in the petition proceeded upon both theories, that is, that the defendant was committing certain acts or was threatening the commission of certain acts which in law would constitute a nuisance, and in that case this court held that it was essential that the plaintiffs should allege in their petition that they had suffered some damage peculiar to themselves. Applying- these rules as heretofore indicated, applicable to the subject of pleading, where an individual seeks to maintain an action concerning a public nuisance, we see no escape from the conclusion that the allegation in the petition of plaintiff in the. case at bar is manifestly insufficient. The allegations in respect to the damages are embraced in these words: “The plaintiff’s property will be greatly damaged and will also depreciate in value more especially than the general property in the city of St. Louis, being located on said Monroe street near .to where the obstruction and permanent diverting is threatened to occur and be placed by the defendant.” That allegation simply amounts to a statement, not that its property will be specially damaged, but that it will be damaged more than the general property in the city of St. Louis, and that is not a sufficient allegation under the rules of law as has been announced by the courts of this State. As was said by Judge Ellison in Thompson & Son v. Macon City, “it may be that he suffered more than some others, but that will not alter the rule that in order to entitle him to damages he must have sustained injury special to him and differing in kind from others.”

Our conclusion upon this proposition is that plaintiff’s petition does not state facts sufficient to entitle it to the relief sought, for the reason, assuming the truth of the allegations of the petition that the ordinance vacating this street was void, then it necessarily follows that the acts which it is alleged the defendant was about to commit would amount in law to a public nuisance, if committed, and this proceeding not being instituted by some public officer authorized to maintain it in behalf of the public, but by an individual, or in other words, an artificial person, it is essential to allege that the plaintiff will suffer some damage peculiar to itself, and not having made such allegation it must be held that the petition is insufficient. If on the other hand it is sought to maintain this action upon the theory that, by reason of the action of the Municipal Assembly of tbe city of St. Louis vacating a part of Monroe street, which resulted' in injury to the property of plaintiff, the enforcement of the city ordinance vacating such street may be restrained, then we are confronted by the repeated announcements by this court of the rule of law that an injunction will not lie to restrain the enforcement of a city ordinance vacating a street on which plaintiff’s property does not abut, although an inconvenience in common with all other persons may be entailed by reason of the action of the Municipal Assembly in adopting the ordinance.

This court, in Glasgow v. St. Louis, 107 Mo. l. c. 204, speaking through Judge Black, said in discussing the subject now under consideration: “The charter of the city of St. Louis gives the Mayor and Assembly power, by ordinance, ‘to establish, open, vacate, alter, widen .... all streets, sidewalks, alleys,’ etc. Under such a power the Municipal Assembly may vacate a street or part of a street without any judicial determination. And such a power, ‘when exercised with due regard to individual rights, will not be re-strained at the instance of a property-owner claiming that he is interested in keeping open the streets dedicated to the public.’ [2 Dillon, Mun. Corp. (4 Bd.), sec. 666.] There is no doubt but a property-owner has an easement in a street upon which his property abuts, which is special to him, and should be protected; but here the plaintiffs own no property fronting or abutting on the part of the street which was vacated: Their property is surrounded by streets not touched or affected by the vacating ordinance. They will be obliged to go a little further to reach Twelfth street, but that is an. inconvenience different in degree only from that suffered by all other persons, and it furnishes no ground whatever for injunctive relief. [Bailey v. Culver, 84 Mo. 531.] ”

In Knapp, Stout & Co. v. St. Louis, 153 Mo. l. c. 572, the principle and rule of law announced in the Glasgow case as heretofore cited, was unqualifiedly approved, and Judge Gantt, in discussing the subject of the essential averments in cases of this character to entitle plaintiff to the relief sought, used this language: “Moreover, to entitle plaintiff to relief as an adjoining proprietor it devolved upon it to allege and prove that it owned, property fronting or abutting on the part of the street which the ordinance in question vacated. In a. word, it must aver facts which show it will suffer a special or peculiar injury and not merely such inconvenience as is cast upon all other persons of that neighborhood,” citing in support Glasgow v. St. Louis, 107 Mo. loc. cit. 205; Van De Vere v. Kansas City, 107 Mo. 83; Rude v. St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85.

In Knapp, Stout & Co. v. St. Louis, 156 Mo. 343, the doctrine announced in the previous cases of Glasgow v. St. Louis, and Knapp, Stout & Co. v. St. Louis, 153 Mo. 560, that to entitle a plaintiff to injunctive relief it was necessary to allege that the property owned by the plaintiff fronted or abutted on a portion of the vacated street, was fully approved.

That the Municipal Assembly by the ordinance as herein indicated sought to vacate a part of Monroe street, there can be no dispute, and in Heinrich v. St. Louis, 125 Mo. 424, it was expressly decided, that the city of St. Louis had the power to vacate streets and alleys and that it was for the Municipal Assembly and not the courts to say when that power was to be exercised. Judge Black, in the Glasgow case heretofore referred to, in discussing the intentions of the Municipal Assembly in passing the ordinance, said: “There is no doubt but the Municipal Assembly, in enacting the ordinance, intended to aid and foster a large manufacturing industry; but it is equally clear that the ordinance was passed with due regard to the public interests. The evidence entirely fails to show any fraud on the part of the city authorities, or any combination to injure any one. Nor does the evidence show that the ordinance was an unreasonable one. Whether the street should be kept open or vacated was purely a matter of expediency, and that was a question for the Municipal Assembly and not for the courts to decide,” citing numerous authorities.

Learned counsel for appellant directs our attention to the case of Cummings v. St. Louis, 90 Mo. 259, and insist that the conclusions announced in that case are decisive of the controverted legal propositions involved in the case at bar. We are unable to agree with learned counsel upon this insistence. The same learned and esteemed judge that wrote the opinion in the Cummings case also wrote the opinion in the Glasgow case, and in the Cummings case it is expressly recited that there could be no claim by the city that it was acting in the exercise of the power conferred upon the assembly to vacate streets, and Judge Black expressly stated in the Glasgow case that “it must be remembered that the city is here pursuing a power to vacate streets, conferred upon it in express terms, so that Cummings v. St. Louis, 90 Mo. 265, and some other cases cited by the appellants, have no application to this controversy.”

The law as announced applicable to the disclosures of the record in the Cummings case was not criticised or even discussed in the subsequent cases of Knapp, Stout & Co. v. St. Louis in the 153 Mo., and the case between the same parties in the 156 Mo., and in the Glasgow case, Judge Black, who wrote both opinions, disposes of that case by saying that it has no application to the disclosures of the record in the case he had in hand; therefore, we see no escape from the conclusion that the rule announced in the Cummings case has no application to the disclosures of the record in the ¿lase now before ns. However, we deem it unnecessary to pursue this subject further, for in our opinion, the allegations contained in the petition that the ordinance vacating part of Monroe street was void and of no effect, negative the theory that plaintiff is seeking by this action to restrain the enforcement of an ordinance vacating a public street, and this cause as presented must stand or fall upon the first theory of this case discussed, that is, that the ordinance vacating the street being void, the defendant threatening to take possession of a part of a public thoroughfare and place thereon permanent obstructions, which in law if the threatened acts were consummated would amount to a public nuisance, by this action it is sought by injunction on the part of an individual or an artificial person to prevent the commission of such acts as would constitute a public nuisance. We have heretofore fully discussed that particular theory of this case and pointed out the insufficiency of the petition, hence there is nothing remaining to be said except to announce the result of our conclusions, which is, that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.