City of St. Louis v. Wallrath
| Decision Date | 18 March 1922 |
| Docket Number | No. 22721.,22721. |
| Citation | 293 Mo. 385,239 S.W. 110 |
| Parties | CITY OF ST. LOUIS v. WALLRATH et al. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Granville Hogan, Judge.
Action by the City of St. Louis against Ferdinand Wallrith and others for the assessment of damages and benefits to private property by reason of change of grade in street. From a judgment dismissing the petition as to all defendants on objection by William Bruecker and six other defendants, plaintiff appeals. Reversed, and remanded for further proceedings.
Henry S. Caulfield, George F. Plaid, and Oliver Senti, all of St. Louis, for appellant.
Walther, Muench & Hecker, of St. Louis, for respondents.
This is an action for the assessment of damages and benefits to private property by reason of a change in the grade of a portion of Kingshighway Northeast, from Penrose Park to West Florisant avenue, in the city of St. Louis. The petition, filed November 8, 1918, names about 150 owners of property which will or may be damaged by the grading for the public improvements and work to conform to the elevations established by the ordinances which are pleaded. William Bruecker and six other defendants answered, admitting the enactment of the ordinances and the establishment of the grades as pleaded, and that they are owners of abutting lots which will or may be damaged by the grading for the proposed work and public improvements. They allege that the city of St. Louis did heretofore, pursuant to the order of the board of public service of said city and to ordinances duly enacted by the board of aldermen of said city, change the physical grade of said Kingshighway Northeast, and did thereby greatly damage the property of these defendants without first compensating them as by the Constitution and statutes of the state and the charter of said city provided; that such change of grade constituted a trespass, and the defendants William Bruecker and Nettie Bruecker had instituted and there is now pending in the circuit court of the city of St. Louis an action against plaintiff for the damages arising from said trespass, and that the other above-named defendants are preparing to institute like suits to recover the damages sustained by them respectively by reason of such trespass. The other defendants did not answer or plead to the petition. A motion to strike out this special plea in the answer being overruled, and plaintiff failing to file a reply to the answer, the court dismissed the petition as against all of the defendants. From this order plaintiff appealed.
The respondents contend that, under our Constitution, statutes, and the charter of the city, plaintiff was required to pay to the owners of abutting property, or into court for their benefit, consequential damages arising from a change in the grade of the street, before beginning the work, and that, where the city proceeds with the work pending an action to assess the benefits and damages, the plaintiff is estopped from proceeding with the suit, and the court loses jurisdiction of the action as an entirety, and it abates, not only as to the defendants pleading, but to the others as well who do not plead.
This was not an action to condemn private property for a street. It was admitted that the street had long been in existence, and that ordinances had been enacted and appropriate proceedings taken to change the grade of the street, and that the owners of abutting lots would or might sustain consequential damages as a result of such change of grade. Hence the right of the city to change the grade is not in question.
Article XXI of the charter of the city of St. Louis relates to the condemnation of or damages to private property, real or personal, or any easement therein for public use. It provides for the appointment of commissioners to assess damages in the...
To continue reading
Request your trial