Cross v. City of Kansas

• Decision Date: 15 November 1886
• Parties: CROSS v. CITY OF KANSAS.
• Court: Missouri Supreme Court

90 Mo. 13

CROSS

v.CITY OF KANSAS.

Supreme Court of Missouri.

November 15, 1886.

Appeal from Jackson circuit court.

Alderson & Young, for appellant, Cross. D. S. Twitchell, for respondent, City of Kansas.

NORTON, J.

This is a suit to recover damages alleged in the petition to have been occasioned by cutting down, changing and lowering the grade of May street, in the city of Kansas, in pursuance of a certain ordinance of said city, whereby plaintiff's property abutting on said street is alleged to have been damaged. The answer of defendant sets up, in substance, that May street was a public street of said city, with an established grade; that in 1882 plaintiff, and other residents and owners of property between Sixth and Ninth streets in said city, petitioned the common council to grade a part of said May street from Sixth to Ninth streets, according to a grade specifically set forth in the petition; that the common council found that the work as named in said petition had been petitioned for, and the petition published according to law; that in pursuance of said petition an ordinance was passed, and the grade of the street lowered and changed, as prayed for by the petitioners, of whom plaintiff was one; that he stood by and saw the work done according to his request; and that he is thereby estopped from setting up any claim for damages, if any resulted.

The plaintiff admits that he joined in a petition to the common council asking for a change of grade in said May street as alleged in defendant's answer; that said change of grade and improvement of said part of said May street was done under and by virtue of the ordinance of defendant aforesaid, passed in compliance with said alleged petition; and that said improvement was done at the expense of the property holders owning the property fronting on said part of said street; and that the said common council did find and declare that the work, as named in said pretended petition, had been petitioned for, and the petition published according to law. The replication then sets up that the petition was not signed by property holders owning a majority of the front feet of property owned by the residents of the city of Kansas, and fronting on the part of May street to be improved.

Judgment was rendered for the defendant on the pleadings, from which the plaintiffs have appealed.

But two questions are presented by the appeal-- First, was plaintiff estopped, by reason of his being one of the petitioners, from claiming damages? Second, is so much of ...