Davis v. Missouri Pac. Ry. Co.

• Decision Date: 23 December 1893
• Citation: 24 S.W. 777,119 Mo. 180
• Parties: DAVIS v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

24 S.W. 777

119 Mo. 180

DAVIS v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1893.

CITIES — STREET GRADE — CHANGE FROM NATURAL SURFACE — DAMAGES — IMPROVEMENTS.

1. Under Const. art. 2, § 21, prohibiting the taking or damaging of private property for public use without compensation, a city is liable for damages to property from a material change in the grade of a street from the natural surface.

2. A city is not, however, liable for damages from such change to improvements put on the property after the grade to which the change is made has been established and made a matter of record.

Appeal from circuit court, Jasper county; M. G. McGregor, Judge.

Action by Philip R. Davis against the Missouri Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

R. T. Railey, for appellant. T. B. Haughawout, for respondent.

MACFARLANE, J.

This action is for damages done to the plaintiff on account of grading by defendant of McGregor street, in the city of Carthage, in front of his property fronting on said street. The petition charged that plaintiff was the owner of lot 175, fronting on the east side of McGregor street, except a small portion thereof, which is described; that for the purpose of raising the grade of said street, in the year 1890, defendant constructed in said street, to its full width, and about eight feet high, in front of plaintiff's property, an embankment of a permanent character, which was done under a license granted defendant by the city of Carthage, a duly-incorporated municipal corporation, by which his property was damaged $500. The answer admitted the ownership of the lot, and that the west end thereof abuts on said street, and charged that the grade of McGregor street was duly established by an ordinance of said city in the year 1882, which was entered in the grade book of said city, and was a part of the public records of the city; that, during the year 1890, defendant, being desirous of running a spur of its railroad across said street, south of plaintiff's lot, said city of Carthage, through its council, authorized it to do so, upon condition that it would raise the grade of the street up to that established by the city; that defendant so constructed the grade by the direction and under the requirements of said city, and wholly for its benefit. Plaintiff replied that defendant agreed with the city of Carthage to repair the damage that might be done to the street in constructing its railroad across it, and pay all damage to property owners resulting therefrom. There were other issues made and tried, but no point is made on them, and they need not be considered.

On the trial it was shown from the charter and ordinances of the city of Carthage that it had power to "grade, pave, or otherwise improve and keep in repair all roads, streets, and bridges within the city limits, and that it did establish the grade of McGregor street in the year 1882. That by an ordinance duly passed and approved in 1890 the defendant was authorized to construct its road across said street, south of and adjoining the property of plaintiff, and other streets. Defendant was required, as a condition, to construct, erect, and keep in repair suitable crossings or bridges at the intersection of its said railroad track with each and every one of said streets, and shall grade the approaches to such crossings or bridges on both sides of the track." The crossing of McGregor street was between Eldorado and Limestone streets, and on each side of the railroad crossing the natural surface of the ground was higher than at the point of crossing. The crossing of the street by the railroad was some 13 feet below the natural surface of the ground, requiring a bridge above it for travel on the street. The bridge and its approaches were made in a careful and skillful manner on the established grades, which raised the street in front of plaintiff's property from two to six feet above the natural surface of the ground upon which plaintiff's improvements were made, as variously estimated by the witnesses. Plaintiff improved his property in 1884. Plaintiff offered evidence tending to prove that when he improved his property he had no knowledge that a grade had been fixed.

The court, of its own motion, gave the following instruction: "The court instructs the jury that if they believe from the evidence that the plaintiff, in 1890, was the owner of lot 175 in North Carthage, Jasper county, Missouri, except that part of said lot described in defendant's answer, which had theretofore been sold to defendant, and that said lot and the part thereof so owned by plaintiff fronted on McGregor street, in the city of Carthage, and that defendant, in building its railroad across McGregor street, near said premises and lot, built the same below the grade of said McGregor street, and in constructing a bridge over and above its railroad on said street, and approaches to said bridge, filled up said McGregor street, and raised the same in front of plaintiff's said lot, and damaged plaintiff's said lot, and depreciated the value thereof, then the jury should find the issue in favor of the plaintiff." Defendant asked, and the court refused to give, the following instruction: "If the jury believe from the evidence that the city of Carthage, through its council, in 1882, or prior thereto, established the grade of McGregor street; and that the work done by said defendant adjacent to said lot 175, upon said street, was done with the consent and by the direction of said city of Carthage; that said work was performed in a workmanlike manner, and simply made said street to conform to the grade established by said city aforesaid along said street and in front of plaintiff's said lot 175, — then the plaintiff is not entitled to recover in this action, and the jury should find for the defendant." The ruling...