Sheehy v. Kansas City Cable Railway Co.
| Decision Date | 19 March 1888 |
| Citation | 7 S.W. 579,94 Mo. 574 |
| Parties | Sheehy v. Kansas City Cable Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
Johnson & Lucas for appellant.
(1) The first instruction given for plaintiff was erroneous. The city had the power to permit the defendant to make any use of the street, which was a public one, and to do all things necessary to enable it to make such use, and more especially if such use was a great public convenience. The construction of a street railroad in a public highway is simply the preparation of the highway for a use universally conceded to be public; and, while it is true that the plaintiff has a property right in the street appurtenant to his lot fronting thereon, yet such property right is, in every respect subject and subordinate to the right of the public (exercised by the municipality) to make any change in the street which may conduce to the public convenience. The instruction assumes that plaintiff can be damaged by lowering the street or the surface of it. This is not true; for plaintiff's property right in the street is entirely subordinate to that of the city, to do, or cause, or permit to be done, any act which enables the public the more fully to use and enjoy the highway. Gay v. Tel. Co., 12 Mo.App. 485; Building Ass'n v. Bell Tel. Co., 13 Mo.App. 477; S. C., 88 Mo. 274 and cas. cit. (2) The first instruction asked by the defendant should have been given. The city could authorize the improvement of the street in any reasonable manner, without giving plaintiff any cause of action against those making the improvement. Laws of 1875, p. 204. The third instruction asked by defendant simply explained to the jury what matters they should consider in determining whether plaintiff was damaged. Defendant was entitled to have the jury told what the law would allow them to consider as elements of damage, and the refusal to do so is error. R. S sec. 3655. (3) The verdict was clearly against the weight of evidence. The preponderance of testimony was overwhelmingly in favor of defendant, and the verdict was manifestly against the weight and entire current of the testimony. Taylor v. Fox, 16 Mo.App. 527. And it was the duty of the court below to sustain the motion for a new trial. Lionberger v. Pohlman, 16 Mo.App. 392. There is no substantial evidence to support the verdict. O'Donnell v. Railroad, 7 Mo.App. 190. The measure of damages in this case was the difference in the market value of the property before and after the change of grade. As to this there is an entire absence of testimony on the part of plaintiff. Spooner v. Railroad, 23 Mo.App. 403. (4) The damages found by the jury are excessive. And where the damages are manifestly excessive, the case will be remanded for a new trial. Logan v. Small, 43 Mo. 254; Goetz v. Ambs, 27 Mo. 28; Kennedy v. Railroad, 36 Mo. 351. (5) The petition does not state a cause of action, in this: That it fails to allege that plaintiff owned an easement in Ninth street appurtenant to his lot; or any fact from which that could be inferred; and fails to allege that Ninth street is a street in Lucas Place. R. S. of 1855, secs. 1, 8; R. S. 1879, secs. 6569, 6573.
C. O. Tichenor for respondent.
(1) The point made by appellant, that the verdict as to its amount, is against the weight of the evidence, is not well taken. City v. Hill, 80 Mo. 523; Burrough v. Rodgers, 7 Cent. Law Jour. 828. (2) The evidence shows that the defendant cut the street lower than was allowed by the ordinance, because it was beneficial to it to do so. (3) Under the constitution, the power of cities to give the right to lay railroad tracks on its streets, is coupled with the burden of paying the damages actually caused by the exercise of the power, provided the same are peculiar to the party damaged. Harmon v. Omaha, 17 Neb. 548; Reardon v. City, 65 Cal. 501. (4) An abutter has an easement; a substantial property right in the street, no matter where the fee may be. Lackland v. Railroad, 31 Mo. 137; Glasgow v. St. Louis, 4 West. Rep. 573; Story v. Railroad, 90 N.Y. 122; Lahr v. Railroad, 104 N.Y. 268; Bank v. Railroad, 28 F. 233; Railroad v. Eddins, 60 Texas, 663; Town v. Leopold, 106 Ind. 29. (5) It is not claimed that plaintiff ought to have sued the city. The argument seems to be that neither are liable. We do not say they could not be joined, though some decisions seem to look as if the railroad was alone liable. City v. Wharf, 115 Ill. 525; Railroad v. McCutcheon, 5 Cent. Rep. 759; Railroad v. Eddins, 60 Texas, 663; Railroad v. Reary, 42 Md. 132; Broadwell v. City, 75 Mo. 218.
Plaintiff, as the owner of a certain lot in Kansas City, with three dwelling-houses upon it, with a frontage of one hundred and ninety-two feet on Ninth, and fifty feet on Jefferson streets, in said city, sues for damages to said property, alleged to have been occasioned by the act of defendant in cutting down and lowering the grade of said Ninth street, below the grade established in 1879, when said houses were built on said lots. Defendant justified the act under an ordinance of the City of Kansas, approved April 4, 1883, authorizing J. W. Smith and others to construct and operate for the term of thirty years, an endless cable street railroad on and over certain streets, one of them being said Ninth street, from Grand avenue west to the west boundary line of Coates' addition. This ordinance authorizes a change in the grade of Ninth street in front of plaintiff's lot, and the evidence shows that the grade was, by defendant, cut down and lowered below the grade established in 1879, twenty feet at the west end of plaintiff's lot, fifteen feet and three inches opposite the west house on said lot, six feet at the middle house, and that the two grades came together at the west line of Jefferson street. In regard to the damage occasioned by this change of grade to plaintiff's property, the evidence is conflicting, and on the trial judgment was rendered for plaintiff for five thousand dollars, from which defendant has appealed, and seeks a reversal for alleged error in the action of the court in giving and refusing instructions, and because the damages are excessive.
The court, as shown by the instructions given as well as by those refused, tried the case on the theory, that while the city had the right by ordinance to change the grade of said street in front of plaintiff's property, and to authorize defendant to make such change, still the defendant was liable for any damage resulting to plaintiff by reason of such change. It is insisted by counsel that this theory was erroneous, and that the city being fully empowered by its charter to grade, alter, and change the grade of its streets and having changed the grade of Ninth street at this locality by ordinance, and authorized and permitted defendant to grade the same for the purpose of constructing its road thereon, it is not liable for damages...
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