Bray v. Land Construction Co.

• Decision Date: 10 May 1920
• Citation: 221 S.W. 818,203 Mo.App. 642
• Parties: MARTHA BRAY, Respondent, v. LAND CONSTRUCTION COMPANY and THE CITY OF ST. JOSEPH, Appellants
• Court: Kansas Court of Appeals

221 S.W. 818

203 Mo.App. 642

MARTHA BRAY, Respondent, v. LAND CONSTRUCTION COMPANY and THE CITY OF ST. JOSEPH, Appellants

Court of Appeals of Missouri, Kansas City

May 10, 1920

Appeal from Buchanan Circuit Court.--Hon. Thos. B. Allen, Judge.

AFFIRMED AS TO CITY, REVERSED AS TO CONSTRUCTION COMPANY.

Homer C. King and Randolph & Randolph for respondent.

Barney E. Reilly and W. B. Norris for appellant, Construction Co.

Stigall Meyer & Hamm for appellant, city.

OPINION

BLAND, J.

Plaintiff, Martha Bray, the owner of certain real estate in the City of St. Joseph, Missouri, sued the City of St. Joseph and the Land Construction Company for damages for depositing upon her lot to a depth of 8 ft. a large amount of earth covering a space from 9 to 14 ft. 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, Missouri, 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 of 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 84, Revised Statutes 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 damages that were or could have been ascertained in the proceeding under the ordinance could not have included the taking of private property "to use as a dumping ground, or for the purpose of widening a street." The city under these proceedings was not attempting to take plaintiff's property nor to widen the street. It was the purpose of the city to grade the street so that...