Burde v. City of St. Joseph

• Decision Date: 04 May 1908
• Citation: 110 S.W. 27,130 Mo. App. 453
• Parties: BURDE v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

110 S.W. 27

130 Mo. App. 453

BURDE v. CITY OF ST. JOSEPH.

Kansas City Court of Appeals. Missouri.

May 4, 1908.

1. MUNICIPAL CORPORATIONS — STREETS — CHANGE OF GRADE — PROPERTY INJURED.

In determining whether a given area of land which does not directly border on a graded street is to be regarded as a part of the abutting land for the purpose of awarding damages for a change of the grade, all of the facts and circumstances of the particular situation should be considered in ascertaining whether the area in question is so identified with the intervening land under common ownership that the two cannot be separated in use without injury to the value of each.

2. SAME.

Where plaintiff owned two lots on a corner of two streets, both lots being divided by the recorded plats into independent subdivisions, and both were separately acquired and improved, plaintiff was not entitled to an award of damages to the inside lot for an alleged change of grade of the street on which it did not abut.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by Ernest A. Burde against the city of St. Joseph. Judgment for plaintiff for less than the relief demanded, and he appeals. Affirmed.

James M. Wilson, for appellant. Norris & Shultz, for respondent.

JOHNSON, J.

Plaintiff sued the city of St. Joseph for damages caused by the grading of La Fayette street in front of his property. He alleged, and the fact is conceded by defendant, "that said grading was done by defendant city in violation of section 21 of article 2 of the Constitution of the state of Missouri, and without first having ascertained or paid or tendered to plaintiff his damages by reason of said grading." It appears that plaintiff is the owner of lots 5 and 6 in block 79, Patee's Sixth addition to St. Joseph; that each lot is 45 feet by 140 feet and abuts on Nineteenth street, which runs north and south; that lot 5 adjoins La Fayette street, which runs east and west; and that said lot lies between lot 6 and La Fayette street. Further, it appears that plaintiff acquired the lots at different times under separate deeds, and that at the time of the grading the improvements on lot 5 consisted of two dwelling houses facing La Fayette street, and the improvements on lot 6 were three dwelling houses facing Nineteenth street. Plaintiff seeks to recover compensation for the damages to both lots on the theory that they form a single parcel of land abutting the street graded; but, in the instructions to the jury, the trial judge held that each lot constituted a separate tract, and directed that no damages be allowed on account of the injury, if any, to lot 6, since it neither abutted on nor adjoined La Fayette street. This ruling affords the ground on which plaintiff, who appealed, asks us to reverse the judgment.

We held, in Gardner v. City of St. Joseph, 96 Mo. App. 657, 71 S. W. 63, that a lot owner, to be entitled to an award of damages on account of the grading of a public street, must show that his lot abuts on that part of the street graded; but the term "lot," as used in this opinion and in other cases to which we have been cited, does not mean necessarily the platted lot. Where two or more contiguous city lots belong to one owner and are used by him as a unit, or, where not thus in actual use, were purchased in contemplation of...