Werth v. City of Springfield

• Decision Date: 20 April 1886
• Citation: 22 Mo.App. 12
• Parties: H. W. WERTH, Respondent, v. CITY OF SPRINGFIELD, Appellant.
• Court: Missouri Court of Appeals

22 Mo.App. 12

H. W. WERTH, Respondent,

v.CITY OF SPRINGFIELD, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 20, 1886.

APPEAL from the Greene County Circuit Court, W. F. GEIGER, Judge.

Reversed and remanded.

J. P. MCCAMMON and R. L. GOODE, for the appellant: An ordinance was necessary to carry into effect the power to change the grade of a street. Boon v. City of Utica, 2 Barb. 104; Fulton v. City of Lincoln, 2 N. W. Rep. 724; Saxton v. Beach et al., 50 Mo. 489; Thomson v. City of Boonville, 61 Mo. 282; Irvin v. Devors, 65 Mo. 625; Werth v. City of Springfield, 78 Mo. 107; Stewart v. City of Clinton, 79 Mo. 604; Wittler v. Cavender et al., 3 Mo. App. 580; Perkinson v. City of St. Louis, 4 Mo. App. 322; Stifel v. Dougherty, 6 Mo. App. 441. “Ratification after suit brought will not relate back to sustain an action not authorized when it was commenced, for plaintiff must have had a right of action at the time of the commencement of his action.” Williams v.Insurance Co., 18 Eng. Rep. 320, and note; Gilbert v. Sharp, 2 Lans. 414; McCullock v. Colby, 4 Bosw. 603; 5 Bosw. 477; Wattson v. Thibou, 17 Abb. Pr. 184; Williams v. Hernon, 16 Abb. Pr. 173; Moyer v. Scott, 30 Mich. 348.

FRANCIS H. SHEPPARD, for the respondent: A general ordinance required the street commissioner to obey orders from the street committee, and there is a presumption that a sworn officer performed his duty. Greenl. on Ev., sect. 40, pp. 45-6; Gray v. Givens, 26 Mo. 299, 300; Baker v. Underwood, 63 Mo. 389. In any case the city ratified and adopted the work. A corporation may ratify the authorized act of its agent, if the act is not ultra vires. Br. Leg. Max. (6 Am. Ed.) 833, 837, and especially 841 on p. 646; 1 Dillon Mun. Corp. (2 Ed.) sect. 385, p. 478, and sect. 386 and note 1; Ruggles v. Washington Co., 3 Mo. 496; Hunt v. Boonville, 65 Mo. 620; Dooley v. Kansas City, 82 Mo. 444. The ordinance of January 12, 1880, relates back to the time the city made the grade and paid for it. Powers v. Hurmeet, 51 Mo. 136, 138; Slagel v. Murdock, 65 Mo. 522; Jackson v. Ramsey, 3 Cow. 57; Bouvier's Law Dict., title Relation, and authorities cited. An ordinary action lies for changing a grade, and the constitution is self-enforcing. Householder v. Kansas City, 83 Mo. 488.

ROMBAUER, J., delivered the opinion of the court.

This cause was heretofore before the supreme court, and its opinion therein is reported in 78 Mo. 107. Before the last trial in the circuit court, the plaintiff filed an amended petition, the averments of which were substantially as follows:

That Henry Sheppard, in 1867, filed in the office of the recorder of deeds for Greene county, Missouri, a plat of an addition to the defendant city, which dedicated to public use, Walnut street; that the title to lot one of said addition, fronting on said street, on June 12, 1877, became vested in the plaintiff; that on November 1, 1878, the defendant raised the grade of said street in front of said lot, two feet above said lot, in a negligent and unskilful manner, and such negligence and unskilfulness rendered the plaintiff's access to said lot from said street, and to said street from said lot, very difficult and dangerous, to the plaintiff's damage in the sum of three hundred dollars, for which he asked judgment. In a second statement, or count, the plaintiff, after alleging the platting of said addition, the dedication of said Walnut street, the ownership of lot one of said addition, and the raising by the defendant of the grade of said street in front of said lot, two feet, further alleged that, as a consequence of said raising of said grade, the plaintiff's said lot was lessened in value in the sum of three hundred dollars; that afterward, January 12, 1880, the defendant ratified and finally adopted the grade in front of the plaintiff's lot as the same had been constructed in November, 1878. Wherefore, he prayed judgment for three hundred dollars. The defendant's answer was a general denial. The cause was tried by the court without the intervention of a jury, upon an agreed statement of facts, the trial resulting in a judgment for the plaintiff for three hundred dollars.

The facts agreed upon, as far as they have any bearing on the questions presented by this appeal, are substantially as follows: That on November 1, 1878, the plaintiff owned lot one, of Sheppard's addition to the city of Springfield; that during November, 1878, the street grading was done, of which plaintiff complains; that Dennis McSweeney was street commissioner of the city of Springfield at that time; that it was his duty to superintend the work of grading streets; that he was present at the beginning of the grading complained of, in November, 1878, and was in charge of the hands at work; that the city ordinance in force in November, 1878, required the street commissioner to obey every order in writing addressed to him by the street committee of the council of the city, and signed by the chairman; that there was a street committee of said council in November, 1878, of which E. A. Roberts was chairman; that said chairman and commissioner were each sworn to obey the laws of Missouri, and the charter and ordinances of the city; that the street in front of said lot was raised about two feet above its former level by the grading complained of; that the city paid for said grading; that it has cost $232.35 to fill said lot with earth, and would require raising four inches all over yet to put it on same relative grade with the street which it occupied before; that said additional filling could have been furnished at twenty-five cents per yard; that an ordinance was passed on January 12, 1880, fixing the grade according to the plat of R. L. Innes, city engineer, filed June 15, 1879; that the grade being established by said ordinance does not lower the grade in front of said lot one, as same was left by Dennis McSweeney in November, 1878; that the defendant has at various times since November, 1878, macadamized said street on said grade. It was further agreed, that if sworn, December 10, 1879, L. E. Johnson, Green Campbell, Jos. H. Robberson, John Beal, Joe Routt, C. B. McAfee, A. C. McGinty, and W. F. Leathers, would have sworn that East Walnut street in the winter of 1878 and 1879 was very wet and muddy, with deep ruts, and that this condition was caused by the way it was worked in 1878, in wrong way, at wrong time of year, and by leaving road level, and with red clay on top. That L. Ellenburg paid $1,500 for the place in June, 1880; that it would have been worth $1,800 if nicely graded up to the...