Clinkenbeard v. City of St. Joseph

• Decision Date: 12 June 1894
• Citation: 27 S.W. 521,122 Mo. 641
• Parties: Clinkenbeard v. City of St. Joseph, Appellant
• Court: Missouri Supreme Court

27 S.W. 521

122 Mo. 641

Clinkenbeard v. City of St. Joseph, Appellant

Supreme Court of Missouri, Second Division

June 12, 1894

Appeal from Buchanan Circuit Court. -- Hon. Henry M. Ramey, Judge.

Reversed and remanded.

Huston & Parrish for appellant.

The house was constructed after the street grade was established and this case falls within the doctrine of Davis v Railroad, 119 Mo. 180.

Vinton Pike and Willard P. Hall for respondent.

(1) The provisions of the constitution of this state, which prohibit the damaging of private property for public use without just compensation to the owner, apply to all material changes of the natural surface of the street made for the purpose of making the street conform to the grade lines first established by the city, as fully and completely as they do to changes of the grade of the street after it has once been established and constructed. The citizen has the same right to the original surface of the street that he has to the grade of the street after said grade has once been established and the street brought thereto. Hickman v Kansas City, 120 Mo. 110; Davis v. Railroad, 119 Mo. 180; City of Ft. Worth, 22 S.W. 1059; O'Brien v. Philadelphia, 24 A. 1047; Bloomington v Pollock, 31 N.E. 146; Jones v. Bangor, 23 A. 253. (2) The grading in this case caused material changes in the original surface of the street. A fill was made in the street in front of plaintiff's property from six to ten feet deep. Authorities supra. (3) The court committed no error against defendant in instructing the jury that the measure of damages was the difference between the market value of the property before, and the market value of the property after, the grading of the street. If there was any error, it was in defendant's favor. Hickman v. Kansas City, supra, and cases cited; City of Ft. Worth, 22 S.W. 1059; Bloomington v. Pollock, 31 N.E. 146. (4) The provisions of the statutes invoked by the appellant's counsel, requiring the appropriation of money before the incurring of a pecuniary liability by the city, have no application to the liability of the city for a wrong done by it. The liability of the city in this case is imposed by the constitution, and can not be evaded by any failure of the city's officers to perform duties created by law for the city's protection. Hickman v. Kansas City, supra.

OPINION

Sherwood, J.

Action for damages against the defendant city for damages...