Brown v. Scruggs
Citation | 141 Mo. App. 632,125 S.W. 537 |
Parties | BROWN v. SCRUGGS et al. |
Decision Date | 07 February 1910 |
Court | Court of Appeal of Missouri (US) |
125 S.W. 537
141 Mo. App. 632
BROWN v. SCRUGGS et al.
Kansas City Court of Appeals. Missouri.
February 7, 1910.
Rehearing Denied February 21, 1910.
1. MUNICIPAL CORPORATIONS (§ 736)—LIABILITY OF CITY—NUISANCE.
Where, in the exercise of its corporate powers, a municipal corporation creates or permits a nuisance by nonfeasance or misfeasance, it is guilty of a tort and liable to damages in a civil action to any person suffering special damages therefrom.
2. DEDICATION (§ 35)—PLAT OF PROPOSED ADDITION—APPROVAL BY COUNCIL—ACCEPTANCE OF STREETS.
Approval by the council of a plat of a proposed addition is in no sense an acceptance of the platted streets as public highways, nor does
it cast on the city the duty of keeping such streets in repair.
3. DEDICATION (§ 35)—STREETS—ACCEPTANCE —ORDINANCE—CONTROL.
Though the dedication by the owner of a platted addition does not make public thoroughfares of the streets shown on the plat, the acceptance by the city, either by the passage of an ordinance of acceptance, or by the exercise of control over them, does.
4. MUNICIPAL CORPORATIONS (§ 646)— STREETS—CONDEMNATION—EFFECT.
Where land is condemned by a city for street purposes, it is converted into a public street, although not open to the public for use as a street.
5. MUNICIPAL CORPORATIONS (§ 736)— STREETS—DUTY OF CITY—NUISANCE.
Where a highway is established by accepted gift or condemnation, the municipality has dominion over the street to the exclusion of adjoining property owners, and since proprietorship imposes a duty so to use your own as not to injure your neighbor, it is the duty of a city to prevent the erection in the street of a nuisance that would injure the property of an adjoining neighbor.
6. MUNICIPAL CORPORATIONS (§ 736)— STREETS—LIABILITY FOR NUISANCE.
The rule that a city is not liable to travelers for injuries sustained on a street not prepared for travel, as no invitation, express or implied, was extended to the public to use the street, does not apply to a case where a nuisance to adjoining property is maintained in a street, which, by condemnation, has passed under control of the city.
Appeal from Circuit Court, Jackson County.
Action by D. D. Brown against Rosamond A. Scruggs and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.
John I. Williamson, for appellant. John T. Harding and Edw. J. Shannahan, for respondent Kansas City. Jas. C. Reiger and F. M. Hayward, for respondent Scruggs.
JOHNSON, J.
Plaintiff sued to recover damages resulting from an injury to his property caused by a nuisance set up and maintained in a public street of Kansas City. At the trial, he dismissed defendant Rosamond A. Scruggs from the action, and proceeded against defendant city. At the conclusion of his evidence, the court peremptorily instructed a verdict for defendant. Plaintiff took a nonsuit, with leave to move to set the same aside, and in due course brought the case to this court by appeal. The facts of the case are as follows:
In 1906, plaintiff owned real property on Grand avenue at Twenty-Third street, and occupied the place with a livery stable which faced on Grand avenue and extended back (east) to McGee street. Plaintiff's property is low ground. Eastward from its rear end is a steep acclivity which begins with the west line of McGee street. This street had never been graded or improved by the city nor in any way opened to public travel. Some years before it had been condemned by the city and vacated for street purposes. Over the protests of plaintiff, made at various times, to officers of the city, strangers had been suffered to make a dumping ground of the street, and had gradually built up an embankment of refuse which served as a dam to collect and retain surface water. On the 23d of August, 1906, during a rain storm, this dam broke and precipitated the contents of the pond into the stable. A large amount of personal property was destroyed and other damage done. Plaintiff invokes the rule that "If in the exercise of its corporate powers a...
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