Davis v. The Missouri Pacific Railway Company
| Decision Date | 23 December 1893 |
| Citation | 24 S.W. 777,119 Mo. 180 |
| Parties | Davis v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.
Reversed and remanded.
R. T Railey for appellant.
(1) It is conceded that the grading, etc., in front of plaintiff's property was done in a workmanlike and proper manner. It is averred in petition "that said embankment is of a permanent character and was constructed by the defendant under a license granted to the said defendant by the said city of Carthage." The defendant was duly authorized by said city of Carthage to cross McGregor street with its road. The court, therefore, committed reversible error in refusing defendant's instruction number 9. (2) Plaintiff improved his property in 1884, two years after the grade of McGregor street had been established. When he moved on said real estate in 1884, it was a rough lot, rather in the woods, was stony, and the only improvements thereon at the time was a small box house which was afterwards torn down and used in constructing the present improvements. The undisputed evidence shows that the improvements were constructed upon the original surface of the lot without any reference to the grade established by the city in 1882. The grade of McGregor street, having been established in 1882 defendant having acquired the legal right to cross said street; the grading having been done in front of plaintiff's property in a workmanlike manner, under a license from the city, and for the benefit of the latter, on the grade established by it in 1882; and plaintiff having made his improvements two years after the establishment of said grade, on the original surface, we insist that our demurrer to the evidence should have been sustained. Mfg Co. v. Railroad, 113 Mo. 308; Denver v. Vernia, 7 Col. 113. 2 Dillon on Mun. Corp. [3 Ed.], sec. 995. (3) When authority is conferred by law to grade, level and improve streets and highways, and proper care and skill are exercised in performing the work, those engaged in the latter are not answerable for consequential damages. Mfg. Co. v. Railroad, 113 Mo. 308; Radcliffe v. Mayor, 4 N.Y. 203; Uline v. Railroad, 101 N.Y. 108; Conklin v. Railroad, 102 N.Y. 110; New Haven v. Sargent, 38 Conn. 55; City Council v. Townsend, 80 Ala. 494; Seldon v. City, 10 S. Rep. (Fla). 458.
T. B. Haughawout for respondent.
(1) Prior to the adoption of section one of article two of the constitution of 1875, the city could not be held liable for damages necessarily attending upon the proper and skillful execution of a plan by the city council, but was liable alone for damages resulting alone from the negligent and unskillful execution of the work done in pursuance of the plan; that has been changed by the section of the constitution above cited, which reads as follows: "Private property shall not be taken or damaged without just compensation," and when property is damaged by establishing a grade of a street or by lowering or raising the grade of a street previously established it is damaged for public use within the meaning of the constitution; such is the language used by this court in the case of Werth v. City, 78 Mo. 107, and particularly at page 110. See, also, Sheehy v. Railroad, 94 Mo. 574; City v. Howard, 22 S.W. 1159. (2) When a railway company in constructing its road along or across a street, although done under a license or ordinance granted by a city, they are held liable the same as if the city had performed the work. Sheehy v. Railroad, supra. (3) The ordinances which appellant relies on, granting the privilege to construct its road across the streets of the city of Carthage, expressly provides that the track shall be laid on the grade established by the city of Carthage. (4) All the authorities cited by the appellant in its brief have no application whatever to the case at bar.
OPINION
This action is for damages done to the plaintiff on account of grading, by defendant, of McGregor street, in the city of Carthage, in front of his property fronting on said street. The petition charged that plaintiff was the owner of lot 175 fronting on the east side of McGregor street, except a small portion thereof which is described; that for the purpose of raising the grade of said street, in the year 1890, defendant constructed in said street, to its full width and about eight feet high, in front of plaintiff's property, an embankment of a permanent character, which was done under a license granted defendant by the city of Carthage, a duly incorporated municipal corporation, by which his property was damaged $ 500.
The answer admitted the ownership of the lot, and that the west end thereof abuts on said street, and charged that the grade of McGregor street was duly established by an ordinance of said city in the year 1882, which was entered in the grade book of said city and was a part of the public records of the city; that during the year 1890 defendant being desirous of running a spur of its railroad across said street, south of plaintiff's lot, said city of Carthage, through its council, authorized it to do so upon condition that it would raise the grade of the street up to that established by the city; that defendant so constructed the grade by the direction and under the requirement of said city, and wholly for its benefit.
Plaintiff replied, that defendant agreed with the city of Carthage to repair the damage that might be done to the street, in constructing its railroad across it, and pay all damage to property owners resulting therefrom. There were other issues made and tried, but no point is made on them and they need not be considered.
On the trial it was shown, from the charter and ordinances of the city of Carthage, that it had power to
The crossing of McGregor street was between Eldorado and Limestone streets and on each side of the railroad crossing the natural surface of the ground was higher than at the point of crossing. The crossing of the street by the railroad was some thirteen feet below the natural surface of the ground, requiring a bridge above it for travel on the street. The bridge and its approaches were made in a careful and skillful manner on the established grades, which raised the street in front of plaintiff's property from two to six feet above the natural surface of the ground, upon which plaintiff's improvements were made as variously estimated by the witnesses. Plaintiff improved his property in 1884. Plaintiff offered evidence tending to prove that when he improved his property he had no knowledge that a grade had been fixed.
The court of its own motion gave the following instruction:
"The court instructs the jury that if they believe from the evidence that the plaintiff, in 1890, was the owner of lot 175 in North Carthage, Jasper county, Missouri, except that part of said lot described in defendant's answer which had theretofore been sold to defendant, and that said lot and the part thereof so owned by plaintiff fronted on McGregor street in the city of Carthage, and that defendant, in building its railroad across McGregor street, near said premises and lot, built the same below the grade of said McGregor street, and in constructing a bridge over and above its railroad on said street, and approaches to said bridge, filled up said McGregor street and raised the same in front of plaintiff's said lot, and damaged plaintiff's said lot, and depreciated the value thereof, than the jury should find the issue in favor of the plaintiff."
Defendant asked, and the court refused to give, the following instructions:
"If the jury believe from the evidence that the city of Carthage through its council, in 1882, or prior thereto, established the grade...
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