Dries v. City of St. Joseph
| Decision Date | 06 April 1903 |
| Parties | PETER DRIES, Appellant, v. CITY OF ST. JOSEPH, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Kelley & Kelley for appellant.
(1) It will be seen from the statements of counsel made in connection with the objection to the admission of evidence under the petition, that there is a small lot or strip of ground, twenty-five feet wide, the railroad right of way between plaintiff's lots and said Mitchell avenue; that plaintiff did not claim that his lots abut Mitchell avenue but he claimed that they abut the alley that runs in the center of the block across Mitchell avenue and Sacramento street, and the complaint is that by grading Mitchell avenue and filling it up, and raising it five feet at the alley access to the plaintiff's lots from the alley was obstructed. The above admissions made by plaintiff's counsel in connection with defendant's objection were properly regarded as true, and as much a part of the petition as if they had been written in the petition. (2) The question is, was the plaintiff's private property damaged for public use? It need not be taken nor touched by the city defendant, but it is sufficient if it was damaged in a way and to an extent in which the public generally did not participate or share, i. e., that plaintiff sustained damages different from that sustained by the community generally. Rude v. St. Louis, 93 Mo. 408; Canman v. St. Louis, 97 Mo. 92; Fairchild v. St. Louis, 97 Mo. 85; Schopp v. St. Louis, 117 Mo. 131; Sheehy v. Railroad, 94 Mo. 574; Ferrenbach v. Turner, 86 Mo. 416; Glaessner v. Brewing Ass'n, 100 Mo. 508. (3) It is the settled law that the owner of property abutting on a street or alley has a right of access to his property over such street or alley, and this right is as much property as the lot itself. This principle or right applies with greater force to an alley than to a street, for it is said that "alleys are held in trust for the special benefit of owners of property abutting on them, and are intended to afford rear access to such property." Corby v. Railroad, 150 Mo. 457; Sherlock v. Railroad, 142 Mo. 172; Spencer v. Railroad, 120 Mo. 154.
Kendall B. Randolph for respondent.
The petition, as well as the admission, shows that the lots of plaintiff do not abut on Mitchell avenue. The petition failed to allege any damages "peculiar to him, different in kind, and not merely in degree, from those suffered by other members of the community." Rude v. St. Louis, 93 Mo. 408, and cases cited.
--This is an action brought to recover damages to certain lots and the improvements thereon in the defendant city--incorporated, of the second class--which were the property of the plaintiff.
The petition alleged that plaintiff was the owner and in possession of lots 9 and 10 and one foot four inches of the north side of lot 8 in block 56 of Patee's addition to the defendant city, and that said lots front on the west on Fifteenth street; that Mitchell avenue ran east and west on the north side of said block, north and near to plaintiff's said lots; that there was an alley which ran north and south through the center of said block on which the east end of said lots abutted, and that on said lots there were valuable improvements, etc.
It is further alleged that the defendant city, under certain ordinances which had been duly passed and approved, so graded said Mitchell avenue along the north side of said block as to place an embankment of earth and dirt in said street and on the north of said lot 10 and across said alley about five feet high above the level of the former grade of said avenue and lot and the foundation of the buildings thereon, thereby rendering said lots and buildings thereon inaccessible from said alley and causing water to stand upon said lots, and the buildings thereon to be damp and unhealthy so that goods placed in the said buildings and cellar thereunder became damaged and the health of the occupants impaired, to plaintiff's damages, etc.
The answer was a general denial. At the trial the defendant objected to the admission of evidence on the ground...
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