Bray v. Land Const. Co.

• Decision Date: 10 May 1920
• Docket Number: No. 13187.,13187.
• Parties: BRAY v. LAND CONST. CO. et al.
• Court: Missouri Court of Appeals

221 S.W. 818

203 Mo. App. 642

BRAY v. LAND CONST. CO. et al.

No. 13187.

Kansas City Court of Appeals. Missouri,

May 10, 1920.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Martha Bray against the Land Construction Company and the City of St. Joseph. Judgment for plaintiff, and defendants appeal. Reversed as to the construction company and affirmed as to the city.

W. B. Norris and Stigall, Moyer & Hamm, all of St. Joseph, for appellants.

Homer C. King and Randolph & Randolph, all of St. Joseph, for respondent.

BLAND, J.

Plaintiff, Martha Bray, the owner of certain real estate in the city of St. Joseph, Mo., sued the city of St. Joseph and the Land Construction Company for damages for depositing upon her lot to a depth of feet a large amount of earth, covering a space from 0 to 14 feet in width, extending the full length of the lot, about 140 feet. Plaintiff, recovered a verdict and judgment in the sum of $250, and defendants have appealed.

The petition alleges a trespass on plaintiff's property, the taking of her property, and injury to fruit trees standing in the yard, injury to the barn and to the premises as a place of residence. The answer of defendant city of St. Joseph was a general denial; the answer of defendant Land Construction Company was a general denial and a plea of res adjudicata, to the effect that the earth was placed upon plaintiff's property by virtue of an ordinance passed by the city of St. Joseph, for the grading of the abutting street; that said ordinance provided that the street should be graded to established grades and to the full width thereof, together with the extensions, reinforcements, and slopes necessary to sustain the fills; that proceedings were had in the circuit court of Buchanan county, Mo., for the purpose of ascertaining the damages and benefits arising from the grading provided for in the ordinance, and that said proceedings resulted in a judgment that was final and unappealed from.

The facts show that the city passed the ordinance mentioned in defendant's Land Construction Company answer. The ordinance, among other things, provided that the street "* * * be graded to the established grades and to the full width thereof, together with the extensions, reinforcements and slopes necessary to sustain the fills. All in accordance with plans and specifications therefor on file in the office of the board of public works, a copy a which plans is hereto attached, said plans and specifications being made a part of this ordinance by reference." The specifications provided that embankments should be carried up with a slope of one and one-half feet horizontal to one foot vertical, and that "the street as before described, shall be graded to the full width and further include the extensions, reinforcements and slopes for sustaining the fills, as per plans, and to the grades therefor shown on the profiles and cross sections of the work attached to the ordinance ordering the work. The grading will consist of excavating on all portions of the street above the grade line and in filling all portions of the street, together with the extensions, reinforcements and slopes, below the grade line." The specifications further provided with reference to the fill that the top of the fill should be the full width of the street, and that the slope should be on private property. The profile also shows that the slope should be on the property of plaintiff. Proceedings were had in the circuit court of Buchanan county, under provisions of article 2, chapter S4, R. S. 1909, to ascertain the benefit and damages to the affected property owners, and such damages and benefits were duly assessed, and final judgment was entered therein.

It is plaintiff's contention that the...