Aufderheide v. Polar Wave Ice Fuel Co. , 319 Mo. 337 ( 1928 )

We examined the motion for rehearing in Division, and prepared an opinion thereon, but SEDDON, C., changed his original opinion, and the change made some things said in our opinion inappropos, and we did not file it. We examined the record in this case and directed the appeal herein. In examining such record for error we were not unmindful of the question of jurisdiction. We were then convinced that the record which we examined showed conclusively that much more than $7500 was involved. We have gone over the record again, as the same is now printed and on file. This second examination leads us to concur fully in the present opinion of SEDDON, C., but we shall give some further reasons for the concurrence. We are so thoroughly convinced that the record from the lower court shows our jurisdiction on the theory of the amount involved, that we want to spread upon our records (the opinions in this case) some of the patent facts (contained in the record) that unerringly show the appellate jurisdiction to be in this court on account of the amount involved, as well as for other reasons, which might be assigned. Respondents now stress the question of jurisdiction. Most of the brief is devoted to it. However, in no brief, filed up to this date, is it claimed that more than $7500 is not involved. We reiterate no claim is made, in brief or otherwise, that, as a fact, less than $7500 is involved. The only claim is that the record from the circuit court fails to show that more than $7500 is involved. Now for the record facts.

We take first the amount involved on the side of plaintiff. The petition says that the four named plaintiffs are property owners and locates their respective properties. The petition then says:

"That these plaintiffs bring this suit not only in their own behalf, but at the request and on behalf of thirty-seven other residents and property owners in said neighborhood, and as representatives of a class of other residents and property owners in said neighborhood, too numerous to be joined as plaintiffs herein, who are threatened with similar irreparable injury and damage, and have the same causes of complaint as plaintiffs allege herein."

Thus we have involved herein at least forty-one properties in the particular district or neighborhood. A list introduced in evidence shows forty-three signers. The evidence shows that these parties had an organization, and had a secretary-treasurer, who looked after financing this lawsuit. Of the forty-three signers (which included the four named in the petition) thirteen were on Obear Avenue, twenty-two on John, five on Penrose Street, three on Gano, and one on Grand Avenue. But reverting to further admitted facts in the petition, we find, as to the measure of damages the following, viz:

"(a) The character of the structure and plant, and the nature of the business carried on therein and thereat, in a residential neighborhood, and alleged herein, will greatly andunreasonably destroy and depreciate the market value of the property of these plaintiffs.

"(b) The noises, odors, mists, dust and dirt, emanating from the operation of said plant, and created thereby, as aforesaid, will be so great to unusually disturb the comfort and quietude of plaintiffs and the members of their households, and to render their homes uninhabitable with any reasonable degree of comfort and peace, and will so greatly disturb the sleep and rest of the plaintiffs, and the members of their households, as to force them to abandon their homes, or become ill and sick therefrom, thereby inflicting upon plaintiffs and their property great and irreparable injury and damage."

In the decree the court says:

"That the operation of said plant, in the manner as aforesaid,will materially and substantially reduce and impair thefinancial value of the property of these plaintiffs; that thecharacter of the building as planned by defendant alone is suchas to materially and substantially impair and reduce thefinancial value of the property of the plaintiffs."

Note the petition says that the building and operating of the plant will "greatly . . . destroy and depreciate the material value" of the properties. Not nominally, but greatly reduce values. These are admissions of record, and must be given the force of such. Note also the decree and its language upon this subject. The value of these properties, according to the decree, will be materially and substantially reduced, (1) by the planned operation of the ice plant, and (2) by the mere character of the building (ice plant building), without considering its operation. The decree takes a double shot at the reduced values of these properties. We emphasize these record admissions, because of their applicability to other facts as to values likewise apparent in the record, by proof other than by admission, as are the facts, supra. First we give some facts as to the land value in the vicinity of the land involved in this law suit, and then some photographs of some of the properties involved. Plaintiff Aufderheide, in his testimony in speaking of a lot in the exact vicinity of the property of the plaintiffs (the forty-three parties), and around which much of their property is built, says that the owner offered to take $150 per foot for it, and was offered $125 per foot. The offer to buy at $125 per foot is very strong evidence of value. The property for which was offered $125 per foot was a part of the south part of the property now owned by defendant, at the corner of Penrose Street and Obear Avenue. The surroundings can best be described by a plat in evidence of City Block 2485.

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Of this City Block 2485 the defendant now has all the south part, being 314 feet and five and one-half inches on Penrose Street, by 363 feet and one-inch on Obear Avenue and Grand Avenue.

Aufderheide has something over 154 feet on the south side of Penrose Street, and just across the street from the ice plant of defendant. Three named plaintiffs, and ten more of the forty-three parties interested and bound by this lawsuit, own property on Obear Avenue, just across the street, on the west from City Block 2485.

Just west of Obear Avenue is John Avenue, and twenty-two of these parties own property and are domiciled on that street. Further west and next to John is Gano, and three own property there. With Aufderheide, there are four others on Penrose, and one on Grand Avenue. Aufderheide compares his lots with those of defendant. He says both properties were "filled in" but there was more "filling in" on defendant's property. He rather makes out his lots better than those for which he and the then owner were offered $125 per front foot.

At the southeast corner of Grand Avenue and Penrose Street, Anthony Potolsky bought, in January, 1923, a row of flats (three double and one single flat, or four in all) and paid $15,500. He says that he put in $5000 upon them, and now rents them for $200 per month. The lot is 109 feet on Grand Avenue by 126 feet on Penrose. He says he would not have bought had he known that the ice plant was to be built, but also says (at the trial), after he did know the plant was being constructed, that he would not take $20,000 for the row of old brick flats. The photograph below, plaintiffs' Exhibit 13, shows the character of the flats.

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These flats, in fact, constitute one structure with a frontage of 109 feet on Grand Avenue. Potolsky paid $142 per front foot for lot and building. It is this fact that is of importance. Above we have given the record admissions and the court adjudications as to the depreciation of the property of the plaintiffs. The evidence takes a little broader range. One witness who lives and owns a residence across the street from one of defendants' ice plants (it has in the city eleven manufacturing plants and in addition eleven storage plants), says: "Judge ARNOLD; Q. Can't get anything for it can you? A. Well, hardly." The evidence therefore ranges from "hardly anything" on down. As to effect on value other witnesses say, "Substantial reduction;" makes property "hard to rent" and affects rental value; property is "adversely and detrimentally affected; will depreciate the value for rental purposes;" location of ice plant "would be very detrimental; and, "would depreciate value and make sale of property more difficult." Such are samples of the evidence.

The foregoing admissions in the pleadings, adjudications in the decree, and evidence of witnesses clearly tend to show that property values would be reduced not less than twenty-five per cent, if not much more than twenty-five per cent. It is safe to say twenty-five per cent, or one-fourth.

The character of the improvements on the property of the forty-three interested parties is shown by pictures which plaintiffs introduced. From them some idea of value can be gleaned. These pictures are below and on the following page.

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This will suffice for a discussion of the amount involved from plaintiff's side of the case, as such is involved under the rule. The amount on both sides of the case is for consideration, as we see the law, and this rule we discuss next.

I. One of the clearest legal minds that ever graced an appellate bench in Missouri formulated the Missouri rule of determining jurisdiction in cases wherein relief other than a money judgment is involved.

That rule (Evens Howard Fire Brick Co. v. St. L. Smeltering Ref. Co., 48 Mo. App. l.c. 635), reads:

"It is settled that, where the right of appeal depends on the value of the matter in dispute, such value must be estimated in money. When the object of the suit, however, is not to obtain a money judgment, but other relief, the amount involved must be determined by the value in money of the relief to the plaintiff,or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied. If either isnecessarily in excess of the sum within the appellatejurisdiction of this court, then the Supreme Court has exclusive cognizance of the appeal. We took this view in the case of Gartside v. Gartside, 42 Mo. App. 513, in transferring that case to the Supreme Court, and that court, in refusing to remand the cause to us upon a motion made to that effect, affirmed our holding."

It will be observed that the learned writer was particular, in a few words, to say that if the amount involved upon eitherside exceeded the jurisdiction of the Court of Appeals, the jurisdiction was in the Supreme Court. There was a reason for this rule. If plaintiff had judgment his relief gained might exceed $7500, whereas the loss to defendant (appellant) might be much under $7500. If loss to defendant (appellant) alone controlled, the plaintiff might lose his judgment (for relief in value much more than $7500) in an appellate court which had no jurisdiction over the amount involved in plaintiff's judgment. Hence the rule says: "If either (plaintiff's gain or defendant's loss or vice versa), is necessarily in excess of the sum within the appellate jurisdiction of this court (Court of Appeals) then the Supreme Court has exclusive cognizance of the appeal." The learned jurist who formulated the rule had made a thorough review of the cases in the Federal courts in the case of Gartside v. Gartside, 42 Mo. App. 513, and from them gathered the fundamentals of our rule. All of our well-considered cases have endorsed and followed this rule. [Gast Bank Note Lithograph Co. v. Fennimore Assn., 147 Mo. l.c. 559; State ex rel. E.L. P. Co. v. Reynolds, 256 Mo. l.c. 718 and 719; McCoy v. Randall, 222 Mo. l.c. 33 and 34; Clothing Co. v. Watson, 168 Mo. l.c. 143; Garlich Agency Co. v. Anderson, 284 Mo. l.c. 204; Bowles v. Troll, 262 Mo. l.c. 381 and 382.] All these cases approve the rule in 48 Mo. App. l.c. 635, quoted supra.

II. We have further ruled that the record in the lower court must bespeak facts sufficient to show the jurisdictional amount. Subsequently filed affidavits showing the amount involved will not be considered. In such record from the court nisi, the amount involved does not have to appear in figures, and in dollars and cents, either by pleadings or evidence, but facts must appear in the record from such court which do show an estimated amount of more than $7500 in cases where relief other than a money judgment is sought. [State ex rel. v. Reynolds, 256 Mo. l.c. 718.]

We must consider the whole record from the court nisi. [State ex rel. v. Reynolds, supra; Vordick v. Vordick,281 Mo. 279; Tureman v. Ketterlin, 304 Mo. 221; Vanderberg v. Gas Co.,199 Mo. 455.] In the latter case LAMM, J., thoroughly reviews all the cases. See page 460 of 199 Mo. where it is said that we are not even bound by the petition as to amount involved, when the other facts of the record show the contrary. It suffices, in these cases wherein relief other than a money judgment is sought, for the record to show facts from which it may be seen and estimated that more than $7500 is, in fact, involved. These facts may come from the petition, and the admissions therein as in State ex rel. v. Reynolds, supra. They may come from the consideration of the entire record as in Vordick v. Vordick, and Tureman v. Ketterlin, supra. What we emphasize is, that it is not required to show from the record that some witness has stated the value of the relief granted to plaintiff to be so many dollars and cents. It suffices if the record shows facts from which this court should conclude that more than $7500 is involved. What we have said of the plaintiff applies to the loss suffered by defendant.

III. With the facts stated, let us see as to the amount and value of the relief granted to plaintiffs. We take the four plaintiffs named in the petition first, and the others later. We also take the value of their mere naked lots first. Aufderheide has at least 154 front feet (we think quite a bit more) which at $125 per front foot gives $19,150 as the value of his lots. The decree saves him at least twenty-five per cent of this value as we have stated, supra. The evidence and the record shows that the damages to his property (by the erection and operating of the ice plant) would be at least one-fourth of its value. The record admission, as to the depreciation of their property, in this petition, would make it more than twenty-five per cent, and by these admissions they are bound here. These admissions are set out, supra. The relief to him would be $4787.50. Three others of the named plaintiffs live on Obear Avenue. The pictures in evidence show (by the character of the houses thereon) that these lots can't be less than twenty-five feet frontage each. They are no doubt fifty feet, as were the lots in Block 2485 just opposite. This gives seventy-five feet of frontage on Obear Avenue, which at $125 per foot aggregate $9375 as the value of these lots without the houses. The relief granted would be one-fourth of this sum, or $2343.75. Now add this $2343.75 to Aufderheide's $4787.50 and we have $7131.25 as the money value of the relief granted to the four named plaintiffs on their naked lots alone. That the three houses on Aufderheide's property and the three on Obear Avenue (owned by the other three named plaintiffs) are worth very much more than $2000 each is a fact apparent to the humblest citizen from the pictures placed in the record by plaintiffs themselves. Here we have at least $10,000 (nearer $40,000 in my judgment) as the value of the houses, and one-fourth of that would be $2500, the relief granted. Add this $2500 to the $7131.25 (value of relief granted to the lots alone) and we have $9631.25 for the relief (estimated in money) granted by the decree to these four named plaintiffs alone. This suffices for our jurisdiction. But suppose we take the purchase price of the Potolsky flats as a basis for an estimate, in money, of the properties of these same four plaintiffs. For his improved lot Potolsky paid $142 per front foot. The picture clearly indicates that the improvements on plaintiff's properties are at least as good. We would have (belonging to the four named plaintiffs) 229 feet of improved property at $142 per foot which gives a total value of $32,518. Relief granted by decree one-fourth of this is $8129.25, which shows our jurisdiction. These money values of relief granted are from facts in the record. But this is not all. We have 39others receiving the same relief, and receiving it at the suitof the four, and made plaintiffs by the petition. They paid forand prosecuted this suit. When these are considered (as they must be), and the money value of the relief given them by thedecree is added, we have many times $7500.

If plaintiffs had any idea of thwarting the jurisdiction of this court (which they did not — this idea being a pure afterthought), they were playing with fire when they introduced pictures of their property. Pictures give to the average man an idea of value, and courts must know things which everybody knows. [Home Telephone Co. v. Sarcoxie Telephone Co., 236 Mo. l.c. 127.] We don't mean that everybody is an expert on the value of a house, but everybody knows that a given described house (described in and by a picture) has some substantial value and a fair idea of such value. We mean to say that such average citizen can safely say that such house cannot be worth less than so much money. With the picture in evidence (some evidence of value) the courts must know as much as the average general public knows. The evidence shows that one of the houses on Obear Avenue is a five-room cottage, and the picture shows it to be one of the smaller houses on Obear Avenue, and it belongs to one of the named plaintiffs.

So from any angle the relief granted to plaintiffs exceeds the jurisdictional amount of $7500.

IV. We go now to record facts as to amount involved on defendant's side of the case, under the decree rendered herein. Of the size of the building the petition (admissions of record herein) says:

"That defendant has acquired a lot of ground on the southwest corner of said City Block No. 2485, not more than sixty feet distant from said residences of these plaintiffs, and is now proceeding to erect and construct thereon, a large brickbuilding to be used by it for the purpose of manufacturing, storing and selling ice therein and therefrom; that the walls ofsaid building will be sixty feet high, by one hundred andtwenty-two and two hundred and twenty-seven feet in length, andwill abut or be within a few feet of the sidewalk lines of Obearand Penrose avenues."

Ice plants must have a cooling system, and of this cooling system the petition of plaintiffs says:

"That the process of making ice, which defendant has planned and intends to use at said plant, contemplates the construction of a cooling system at or near the top of said building, and from thirty-five to fifty feet above the street, consisting of a large number of coils of iron pipe two or three inches in diameter, the length and number of which are unknown to plaintiffs, over which a constant flow of water will be maintained, day and night, that will fall through the open air, some ten or twenty feet to a receptacle beneath.

"That heavy machinery is intended to and will be necessary, in manufacturing ice in said plant, and the operation of said machinery will be constant throughout the day and night, and will, by reason thereof, make continuous and disturbing noises during the usual hours of rest."

Of this building and the machinery to be used therein the decree says:

"That the plans adopted by said defendant for the construction of said ice manufactory provided for the erection of, and said defendant intends to and will erect, and is now engaged in erecting, a large building of brick, tile and steel, abutting the sidewalk lines of Penrose and Obear avenues, at or near their intersection; that said building when completed will bethirty-nine feet in height, will extend approximately two hundredand ten feet along Obear Avenue and one hundred and twenty-onefeet along Penrose Street; that when completed said building will have a storage capacity for ten thousand tons of ice, and it is the plan and intention of said defendant to and said defendantwill install in said building electrically driven machinery, ofa large and heavy type, and a sufficient number of ice tanks orcans to manufacture seventy tons of ice per day."

The petition is a general admission of record as to the general character of the building and machinery. The plans were changed in the course of construction, and the decree is a better description of the building and machinery, but it will be necessary to go to the evidence, because it tends to show an investment of many, many thousands of dollars, much of which would be wiped out by the enforcement of the decree rendered herein, and now before us upon the appeal. Both sides, in the briefs, treat the building as completed and in operation. No injunction bond was given at the time the suit was filed, or since.

The building fronts south on Penrose Street. A ground plan or plat of it is shown by defendant's Exhibit 17, which is here given.

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"As we gather the facts the frontage of the building on Penrose Street is 121 feet. Note therein the engine room, tank room, shipping room and platform. This portion of the building is thirty-nine feet high, but fourteen feet of this is above the roof and is the cooling plant. This space above the roof is (as we gather the record) 121 feet (fronting on Penrose Street) by ninety feet, and is surrounded by four walls fourteen feet above the roof. The south and north walls would be 121 feet long and the east and west walls ninety feet long, by fourteen feet in height. In three of these walls are built the louvers, or openings for the free admission of the air, to thoroughly aeriate the water of the cooling system. We give these facts, because all the expense of building the fourteen foot walls above the roof (of brick and terra cotta) would be an absolute loss, except for the salvage of second-hand brick, in the event the decree stands. No other business could use these walls aggregating 422 feet in length by fourteen feet in height. So also all the machinery for the water sprays of the cooling system would be a dead loss. The loss at this one point would more than cover the jurisdictional amount. We have some idea of the cost of brick and the wages of brick-layers. The salvage in second-hand brick would hardly pay for removing the superfluous walls, if the decree be enforced, thus leaving the original cost of brick and the wages for building 422 feet of wall in length, by fourteen feet in height, a dead loss. Not only so, but the freezing tank is thirty-nine by ninety feet, in which is used 1000 metal cans for freezing the water into ice. These cans are forty-four inches high with a base of 11× 22 inches, so as to hold water enough to make a 300-pound block of ice. It requires 1000 of these metal cans to make a daily output of seventy tons of ice. Then there is a hot-water vat through which these cans pass to loosen up the ice before taking it out in the storage or loading room. These vats would be a total loss (and their construction would be very expensive under the evidence, although no figures are given), because they belong to ice plants only. The freezing cans (1000 of them) become mere junk when the plant is closed. The engines used would become second-hand junk. At the Victor plant of defendant (the plant constructed just before the instant Penrose Street plant) they use the following engines: One 125-horse-power, two 150-horse-power, two 40-horse-power, two 25-horse-power, several 3-horse-power and acouple of 2-horse-power. Everything is moved by engines and cranes. The plant involved here is shown to be the most modern and complete plant anywhere up to the date of its construction. Evidently it has machinery as complete and parts as numerous as at the Victor plant, its immediate predecessor, in point of construction. This machinery could not be dismanteled within the jurisdictional amount of our appellate jurisdiction. Defendant's Exhibit 16 gives a fair outline of the plant here involved. Plaintiff's Exhibits 5, 6 and 7 show three sides of the Victor plant, and plaintiff's Exhibit 23 shows another of defendant's plants. We insert these, so that some conception may be had of the cost of ice plants and the consequent damage flowing from the decree in this case.

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We are not so ignorant as not to know that many, yes, verymany, thousands of dollars are invested in the Penrose Street plant, which must be dismanteled under the decree. From the record facts (only a part of which we have detailed), we must know that this decree will inflict damages and loss upon defendant, several times our jurisdictional amount of $7500. However, under the law, if the amount involved upon either side is above $7500, this court has jurisdiction. We think we have demonstrated from record facts that from either side of the case, the amount involved exceeds our jurisdiction.

V. A re-reading of the record in this case discloses to my mind a constitutional question. The petition of the plaintiffs says:

"Plaintiffs further state that defendant intends to and will erect, maintain and operate said plant as alleged herein, unless enjoined therefrom by this Honorable Court; that if said plant is erected and operated as aforesaid, then, by reason of the premises, plaintiffs will be deprived of their property without due process of law, in violation of Section 1 of the Fourteenth Amendment of the Constitution of the United States, and Section 30 of Article II of the Constitution of Missouri."

The answer reads:

"Comes now defendant in the above-entitled case and for answer to the amended petition of plaintiffs denies each and every allegation therein contained.

"Wherefore, having fully answered, this defendant prays to be dismissed with its costs."

Among other things the decree says:

"And the cause having been duly submitted for the decision and final decree of the court, and the court being duly and fully advised in the premises, doth find the issues herein joined in favor of the plaintiffs and against the defendant, Polar Wave Ice Fuel Company, and that plaintiffs are entitled to the reliefprayed for in their petition."

The issues joined (the constitutional question was one of the issues joined) were all found in favor of plaintiffs andagainst the defendant.

In other words the decree upholds the contentions of plaintiffs as to the constitutional question by finding all issues in favor of plaintiffs, and the decree finds against the defendant, when in its answer (general denial) the defendant said it was not encroaching upon, or violating, the constitutional rights of the plaintiffs, as by them charged in their petition. So in this case we have the constitutional question not only raised and brought to an issue in the pleadings (the earliest possible time), but we have the court passing upon it in its decree. Not only so, but passing upon it against the contention of the defendant, the appellant here. In such case this question alone suffices for the jurisdiction of this court over the appeal herein.

In the rather early case of Bennett v. Ry. Co., 105 Mo. l.c. 644, MACFARLANE, J., said:

"The question here presented is whether this court or the St. Louis Court of Appeals has appellate jurisdiction of the subject-matter of this case. It is quite clear that the jurisdiction is to be determined, not from what has been done in the appellate court, but from the record as it was when the appeal was taken. The jurisdiction is then fixed, and nothing the parties can do afterwards will change it.

"The proposition then is, did the record in this case, when the appeal was allowed, present a question involving the construction of the Constitution of the United States, or of this State. This must be determined by an inspection of the record itself as it came from the St. Louis Circuit Court.

"The word `involving,' as used by the Constitution, in fixing the appellate jurisdiction of this court, implies that a constitutional question was raised in and submitted to the trial court, and that such court had the opportunity to pass upon it. It cannot be laid down by rule how every such question must be raised in the trial court, but it should, at least, be fairly and directly presented by some of the methods recognized by the practice and procedure of the court. [State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 278; Railroad v. Seifert,41 Mo. App. 37.]"

The italics, supra, are ours. In the instant case, the court not only had the opportunity to pass upon the constitutional question, but in its decree did pass upon it against the contention of appellant.

We admit that what we are now discussing is not the ordinary and usual lodgment of a constitutional question. Ordinarily it is the party having his own constitutional question ruled against him that appeals, and thus brings into the case the question. The petition here, however, charges that the erection and maintenance of this ice plant is the taking of plaintiffs' property without due process of law in violation of named portions of both State and Federal Constitutions. The plaintiffs inject this issue, which involves the constitutional question. The defendant denies this portion as well as all other parts of the petition. The court, by its decree, finds all the issues for plaintiffs, thus saying by its decree, that the erection and maintenance of this ice plant constitutes the taking of the property of plaintiffs without due process of law, and thus saying to defendant you were wrong, when by your answer, you denied that your conduct violated the constitutional rights of plaintiffs, but you did violate their constitutional rights. From this decree of the court the defendant has appealed. This finding of the court on this constitutional question, defendant asks this court to reverse. Is there a live constitutional question here? We think so. We can't reverse this portion of the decree nisi, without passing upon the constitutional questions thus injected into the case, and thus determined by the decree.

The defendant, in some four grounds of its motion for new trial, raises, by specific mention of the portions of the State and Federal Constitution, constitutional questions, such as the taking of its property without due process of law, denial of the equal protection of the law, etc., but we think a constitutional question is squarely in this case, without considering those parts of defendant's motion for new trial which lodge the questions in the case.

The question as to title to real estate being involved we shall not discuss, but leave that to a case where such question is the sole issue. We have enough in this record to show clearly our jurisdiction, without more.

VI. Just a word on the merits, in addition to what our learned Commissioner has written. Again the faithful photographs must be considered. There are a number of them. When all are considered, it clearly appears that the property of these plaintiffs is merely upon the border line separating residential territory from commercial and business property, and that the property of the defendant, was, when bought, and when the improvement started, within a district (as a fact) overwhelmingly devoted to business, commercial and manufacturing purposes. Many of the houses, even on Obear Avenue were erected after defendant bought its property, and it was known that the property was bought for an ice plant. So we not only have jurisdiction, but the plaintiffs, on the facts, failed to make their case.

I therefore concur in the opinion of our Commissioner. White,Atwood and Gantt, JJ., concur in these views as well as in the opinion of SEDDON, C.