Fuess v. Kansas City

Decision Date12 December 1905
Citation90 S.W. 1029,191 Mo. 692
PartiesFUESS v. KANSAS CITY et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Edw. P. Gates, Judge.

Action by Joseph Fuess against Kansas City and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Botsford, Deatherage & Young, for appellant. Edwin C. Meservy, James W. Garner, Chas. H. Thompson, and John H. Lucas, for respondents.

BURGESS, P. J.

This is an action for $5,000 damages alleged to have been sustained by plaintiff by reason of the wrongful acts of defendants in raising the grade of Highland avenue in front of lots 3, 4, 5, 6, 7, and 8, in Weston's addition to Kansas City, of which lots plaintiff was the owner. The trial resulted in a verdict and judgment for defendants, from which plaintiff appeals. The case was tried upon the theory that, if the market value of the lots was depreciated and lessened by the fill, the plaintiff was entitled to recover, by way of damages, the difference between the value of the lots prior to the change of the grade of the street and the value after such change was made; but if the benefit to the lots, if any, by the raising of the grade, more than compensated for the damages, if any, sustained, then there could be no recovery. There was evidence tending to sustain the theory upon which the case was tried, and the court instructed the jury accordingly.

The principal point relied upon by plaintiff for a reversal of the judgment is that the case was tried upon the wrong theory, and that it should have been tried upon the theory that, in reducing damages in cases like this, only those benefits which are peculiar and special to the property in question, and not common or general to properties generally, can be considered or taken into account. The decisions of this court cited by plaintiff, viz.: Pac. Railway Co. v. Chrystal, 25 Mo. 545; Railway Co. v. Richardson, 45 Mo. 466; Combs v. Smith, 78 Mo. 32; Quincy R. R. Co. v. Ridge, 57 Mo. 599; Wyandotte Ry. Co. v. Waldo, 70 Mo. 629; Cole v. City of St. Louis, 132 Mo. 633, 34 S. W. 469; Hook v. Railway, 133 Mo. 313, 34 S. W. 549; Spencer v. Railroad, 120 Mo. 154, 23 S. W. 126, 22 L. R. A. 668; Hickman v. Kansas City, 120 Mo. 110, 25 S. W. 225; 23 L. R. A. 658, 41 Am. St. 684; Nagel v. Railway Co., 167 Mo. 90, 66 S. W. 1090—are cases relating to proceedings to condemn property for public use, or damages to property condemned for such purpose. Such decisions are all one way and in accordance with plaintiff's contention. It has always been held by this court, however, that cases must be heard in this court and considered upon the same theory upon which they were tried in the lower court. Thus, in the case of Horgan v. Brady, 155 Mo. 659, 56 S. W. 294, Marshall J., in speaking for the court, said: "The plaintiff is limited on appeal to the theory on which sh...

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