Colston v. City of St. Joseph
| Citation | 80 S.W. 590,106 Mo.App. 714 |
| Parties | ELIZABETH COLSTON et vir, Respondents, v. CITY OF ST. JOSEPH, Appellant |
| Decision Date | 25 April 1904 |
| Court | Court of Appeals of Kansas |
Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.
REVERSED AND REMANDED (with directions).
James M. Wilson, City Counselor, and G. L. Zwick, Assistant City Counselor, for appellant.
(1) The court erred in sustaining plaintiffs' motion for a new trial. Defendant's instruction No. 3 stated the law correctly and under the facts in the case was very favorable to plaintiff. The instruction told the jury that if the trees were wholly or partly in the street and located so as to obstruct travel unless removed, plaintiff could not recover damages for them. 15 Am. and Eng. Ency. Law (2 Ed.), 416; Gamble v. Pettijohn, 116 Mo. 375; 2 Smith on Mun Corp., sec. 1311.
Benjamin J. Woodson for respondent.
(1) It is expressly decided that respondent, in an action of this kind, can recover if the destruction of shade trees along the sidewalk is an element of damage resulting to her property. Walker v. Sedalia, 74 Mo.App. 70; Brown v Webster City, 88 N.W. 1070; Richardson v. Webster City, 82 N.W. 920; 2 Dillon's Mun. Corp. (4 Ed.) note to section 663, pp. 790 and 791 and cases cited. (2) Respondent is entitled to recover on the pleadings in evidence in this cause. Walker v. Sedalia, 74 Mo.App. 70; Sheehey v. Railway, 94 Mo. 574. (3) Respondent is entitled to recover in this case for grading part of the street in 1902. She did not petition to have it graded. Strickford v. St. Louis, 7 Mo.App. 217, affirmed in 75 Mo. 309; Mitchell v. St. Louis, 14 Mo.App. 600; Gibson v. Owens, 115 Mo. 258; R. S. 1899, sec. 5665.
The defendant city graded a certain street in front of plaintiff's property and while so doing left an embankment several feet in height and cut down four shade trees that were growing near her line. There was a petition filed, in which plaintiff joined, asking that the street be graded. The city council made the necessary order and the street was graded with the exception of a strip of about six feet next to the line of plaintiff's lot. Afterwards, another ordinance was passed by the council providing for the grading of the entire street. Under this last order the said six feet was graded and the four shade trees were cut down and removed. After the first grading the plaintiff built a retaining wall on the outside line of the said six feet of ground under the belief that she was the owner thereof. This wall was torn down and also removed by the defendant. The shade trees in question although standing in the street, penetrated plaintiff's land with their roots.
Under the instruction of the court the jury returned a verdict for defendant. The plaintiff filed a motion for a new trial, assigning as a reason therefor, among others, that the court committed error in giving instruction number three at the request of defendant. The court granted a new trial solely on the ground of error in the giving of said instructions, and defendant appealed.
The instruction giving rise to the controversy is as follows: "The jury are instructed that plaintiff can not in this case recover any damages for the trees mentioned in evidence, if the trees were wholly or partially in the street, and were not at the curb line, but were so located as to obstruct the travel or use of the street unless they were removed."
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