Moore v. City of Cape Girardeau

• Decision Date: 09 March 1891
• Parties: Moore et al., Appellants, v. The City of Cape Girardeau
• Court: Missouri Supreme Court

15 S.W. 755

103 Mo. 470

Moore et al., Appellants, v. The City of Cape Girardeau

Supreme Court of Missouri, First Division

March 9, 1891

Appeal from Cape Girardeau Circuit Court. -- Hon. H. C. O'Bryan Judge.

Affirmed.

Robert H. Whitelaw and Robert L. Wilson for appellants.

(1) After the conveyance of the property by Lorimier's heirs and it being thrown open to the public, the right to use the street by lot-owners became a property interest, and the lot-owner is as much entitled to use of the street and to have it in passable condition as he has a right in his own lot. Rude v. St. Louis, 93 Mo. 408; Thurston v St. Joseph, 51 Mo. 510; Ferrenbach v. Turner, 86 Mo. 510; Lackland v. Railroad, 31 Mo. 181. (2) If a municipal corporation does not place and keep the streets in repair, after its attention is called to its defective condition, it is liable in damage to anyone injured. Shear. & Redf. on Neg., secs. 120, 124, 133, 149, 400 and 411; Craig v. Sedalia, 63 Mo. 418; Beaudian v. Cape Girardeau, 71 Mo. 392; Price v. Lutesville, 25 Mo.App. 317; Bassett v. St. Joseph, 53 Mo. 290. (3) In this state there is an implied liability recognized from unsafe streets. Hinds v. Marshall City, 22 Mo.App. 208.

S. M. Green for respondent.

(1) To render the city liable there must be something more than a paper street with a euphonious aboriginal front name; there must be an acceptance of the street as such by some method known to the law. Laws, 1872, p. 332; Kemper v. Collins, 97 Mo. 646. (2) A municipal corporation is not liable for declining or refusing to legislate in a particular way as requested or demanded. Dillon on Municipal Corporations [3 Ed.] secs. 949 and 1041, and notes; Keating v. City of Kansas, 84 Mo. 414; McCormick v. Patchin, 53 Mo. 33; Brink v. Collier, 56 Mo. 160; State ex rel. v. Cramer, 96 Mo. 75. (3) If any legal street existed at all and appellants were injured by respondent's neglect to keep it in repair, if such were possible "on account and by reason of the encroachments of the Mississippi river," the evidence shows beyond all cavil that it was a common public injury, for which damages could not be recovered by any individual citizen. Rude v. St. Louis, 93 Mo. 414; Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92.

OPINION

Sherwood, P. J.

The petition in this cause is substantially as follows: "Plaintiffs further state, that defendant is a municipal corporation * * * duly and legally incorporated, organized and existing under and by virtue of an act of the general assembly of the state of Missouri, approved March 29, 1872, and of the several acts of which the same was amendatory; and that on the first day of February, 1882, they were, and are still, the owners and in possession of the following described real estate, lot number 2 in range H. * * *

"That upon said lot is situated a large, two-story, brick building of great value, to-wit, of the value of $ 2,000; that said house was erected and constructed for the purpose of being used as an ice-house; that said lot and the improvements thereon are reasonably worth $ 3,000; that Aquamsi or Front or Water street, as it is variously called, is one of the public streets of said city, the defendant herein, and has, for fifty years or more, been used by the public as such; and, within the date last mentioned, has been maintained, repaired and recognized by said city as a thoroughfare for the use of its citizens and the public in general; that the above-described property is situated, as set forth, in range A, in said city, fronting on said street and on the west side thereof.

"That, on account and by reason of the encroachments of the Mississippi river, which bounds said street on the east, said property cannot be approached or reached from the north; and, said lot not being a corner lot, the only way said lot can be reached by footmen or vehicles was by way of said street, south of said property.

"That, on and after said first day of February, A. D. 1882, defendant wilfully neglected and refused, and still wilfully fails, neglects and refuses, to maintain or keep in repair said street, so that the same has, ever since the date last aforesaid, and still is, utterly and wholly impassable in either direction from said property; that, immediately south of said property along which plaintiffs and others had access to said lot, through the wilful neglect, carelessness and utter disregard of the rights of these plaintiffs and citizens, permitted gullies to be washed in said street, some of them of immense proportions, to-wit, thirty feet wide and fifteen feet deep, by reason of which said street is utterly impassable; that, by reason of the condition of said street, plaintiffs are unable to use, occupy or rent said property, and that the same has become wholly worthless to plaintiffs; that the reasonable monthly value of said property is $ 20. Wherefore, the premises considered, plaintiffs pray judgment against defendant for the reasonable rental value of said property since February 1, 1882, amounting to $ 240 per year, and for damages arising to their property rights amounting to $ 3,000, and their costs herein expended."

The first count in defendant's answer is a general denial. The second count is as...