Van de Vere v. Kansas City
| Decision Date | 23 November 1891 |
| Citation | 17 S.W. 695,107 Mo. 83 |
| Parties | Van De Vere v. Kansas City et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Reversed.
F. F Rozzelle, W. S. Cowherd and F. H. Dexter for appellants.
(1) The constitutional protection against damaging private property for public use does not embrace every loss or depreciation to property, which is due directly to public improvements. Unless the owner is disturbed in the enjoyment of some right which he is entitled to make use of in connection with his property, he cannot recover. If the loss or depreciation arises from the mere proximity of the work or improvements as from its unsightly nature or its incongruity with the uses to which the neighboring property is put, there can be no recovery. As in the case of erection of jail on lot in a fashionable locality, whereby the value of property is depreciated. Lewis, Em. Domain, sec. 236; Dillon, Mun. Corp. [4 Ed.] sec. 587. To warrant a recovery it must appear that there has been some direct physical disturbance of a right either public or private, which plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property, in excess of that sustained by the public generally. Rigney v. Chicago, 102 Ill. 64, approved in Chicago v. Taylor, 125 U.S. 161; Gottschalk v. Railroad, 14 Neb. 550; Reardon v. San Francisco, 66 Cal. 492; Moses v. Railroad, 21 Ill. 516. (2) The property meant by the constitutional provision is that collection of rights secured by law in and over land or other thing which in the aggregate constitute the owner's title thereto, his ownership, his right of use and enjoyment, and his right of disposition, as against competing claims upon the part of others. Dillon, Mun. Corp. [4 Ed.] 686. (3) Another phase of the rule that consequential damage cannot be recovered for public improvements is the inability of property-owners to obtain damages for disagreeable results of having railroad built and operated in street in front, upon grade. Tate v. Railroad, 64 Mo. 149. (4) As stated by this court the true rule is, that to recover for injury to abutting property occasioned by the use of a public street, the property-owner must show that the damages are peculiar to him, different in kind and not merely in degree from those suffered by other members of the community. Rude v. St. Louis, 93 Mo. 415; Edmondson v. Moberly. 98 Mo. 523. The supreme court will exercise a supervisory control over the finding of the lower court in equity cases. McElroy v. Maxwell, 103 Mo. 295.
Karnes, Holmes & Krauthoff for respondent.
(1) The provision in the constitution that private property shall not be damaged without just compensation is remedial in its character, and should receive a liberal construction to effect its object. New Brighton v. United Church, 96 Pa. St. 331; Chester Co. v. Brower, 117 Pa. St. 647; Montgomery v. Townsend, 80 Ala. 489; Montgomery v. Maddox, 89 Ala. 181. (2) Consequential damages can be recovered even if caused by public improvements. Reading v. Althouse, 93 Pa. St. 400; Pusey v. Allegheny, 98 Pa. St. 522; Edmundson v. Railroad, 111 Pa. St. 316; Chester Co. v. Brower, 117 Pa. St. 647; Railroad v. Walsh, 124 Pa. St. 544; Chicago v. Taylor, 125 U.S. 161. This rule has been applied in Coal Co. v. Chicago, 26 F. 415; McElroy v. Kansas City, 21 F. 257, 261. And it accords with what has been said in this court in Werth v. Springfield, 78 Mo. 107, 110; Householder v. Kansas City, 83 Mo. 488; Sheehy v. Cable Co., 94 Mo. 574, 579. (3) The fire engine complained of in this case constitutes a nuisance. See Railroad v. Church, 108 U.S. 317; Railroad v. Hall, 14 S.W. 259; Railroad v. Angell, 41 N. Y. Eq. 316; Cogswell v. Railroad, 103 N.Y. 10; Ellis v. Railroad, 63 Mo. 131; Gibson v. Black, 9 S.W. 379; Appeal of Art Club, 13 A. 537; Lippincott v. Lasber, 44 N. Y. Eq. 120; Snyder v. Cabell, 29 W.Va. 48. (4) The act of the defendant threatened a continuous nuisance. The remedy by injunction in such a case is well settled. Wood on Nuisances, secs. 769, 801; Railroad v. Church, 108 U.S. 317. (5) The testimony given by Drs. Johnson, Griffith and Whittaker as to the probable danger to result from the act complained of was sufficient to justify this injunction. Evans v. Railroad, 96 N.C. 45.
Plaintiff is the owner of two lots on Brooklyn avenue in Kansas City, and the defendant city is the owner in fee of a lot adjoining the plaintiff's lots. After the city had let a contract and commenced the construction of a fire-engine house upon the lot owned by it, the plaintiff commenced this suit, praying for an injunction. The circuit court found that the plaintiff would be greatly damaged by the use of the building for a fire-engine house, and enjoined the city and the contractors from proceeding with the work until compensation should be made to the plaintiff for such damage. From that decree the city appealed.
The plaintiff produced evidence to the following effect: That his lots are suitable for residence purposes only; that a number of residences had been erected in the immediate neighborhood; that he had in contemplation the erection of a residence on his lots, and that his property would be decreased in value from thirty-five to fifty per cent. by the erection of the building by the city; one witness says to the amount of $ 2,500. The evidence of three physicians is that the noise and commotion incident to such a structure would be uncomfortable and annoying to persons living in adjoining houses, and might have a damaging effect upon their nervous systems. These same witnesses say that other property on the same street and in the same block would also be injured, but not to the same extent.
On the other hand a physician of twenty-five years' standing testified that he owned and resided on property next to one of these engine houses, and that his property was not depreciated in value, nor was the health of his family affected thereby. Another witness gave evidence to the same effect. The proposed structure is to be set back ten or fifteen feet from the street line. It is designed for one hose wagon, a span of horses and five men. The alarm apparatus consists of a gong with telephone attachments. Fire bells are not used; but the alarms are loud enough to awaken the men.
1. An examination of the evidence leads us to the conclusion that the damages are overestimated by some of the witnesses; but for all the purposes of this case it will be assumed that the plaintiff's property will, to some extent, be depreciated in value by the erection of the fire-engine house and the use of the same for the designed purpose.
Our constitution of 1875 declares "that private property shall not be taken or damaged for public use without just compensation." The same clause in prior constitutions did not contain the word damaged; and the first question is whether the change in the organic law secures to the plaintiff compensation for the damages which he will sustain under the circumstances of this case. Previous to the constitution of 1875 a very restricted meaning had been given to the words taken and property. Thus it was held in St. Louis v. Gurno, 12 Mo. 414, and affirmed in Taylor v. St. Louis, 14 Mo. 20, that the city was not liable in damages resulting to a property-owner from grading and paving a street, where the work was done under an ordinance authorized by the charter. The reason assigned was that to grade a street dedicated to public use was not the appropriation of private property to public use, but simply the exercise of a lawful power over what had become public property, and that the property-owner had no remedy for such consequential damages. And in Hoffman v. St. Louis, 15 Mo. 651, the same rule was applied where the grade of the street had been changed. The rule of these cases was disapproved in Thurston v. The City of St. Joseph, 51 Mo. 510; but in the case of Schattner v. The City of Kansas, 53 Mo. 162, the court returned to the old doctrine, and so the law continued down to the adoption of the constitution of 1875. The only exceptions were in those cases where the city charters or authorized ordinances prescribed a different rule. Cooley, in speaking of what would constitute a taking, says: "Any proper exercise of the powers of government, which does not directly encroach upon the property of an individual, or disturb him in its possession or enjoyment, will not entitle him to compensation or give him a right of action." Cooley on Const. Lim. [5 Ed.] 671. And it is said in Trans. Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336, Such were the rulings under former constitutions.
The eminent domain clause was amended so as to include cases where property is damaged, as well as "taken," to overcome the hardship growing out of the old rules, and what we are at this time concerned with is whether the amendment embraces cases like the one in hand. Thus far we have held that the amendment does extend to those cases where property is damaged by reason of a change in the grade of a street on which the property abuts, and this, too though the city had the charter power to change the grade. Householder v. The City of Kansas, 83 Mo. 488; Sheehy v. Railroad,...
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