Funke v. The City of St. Louis

• Decision Date: 24 May 1894
• Citation: 26 S.W. 1034,122 Mo. 132
• Parties: Funke, Appellant, v. The City of St. Louis
• Court: Missouri Supreme Court

26 S.W. 1034

122 Mo. 132

Funke, Appellant, v. The City of St. Louis

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from St. Louis City Circuit Court.

This is a proceeding which plaintiff claims is bottomed on section 1815, Revised Statutes, 1889. She owns a tract of land having a front of one hundred and forty-six feet, eight and one-half inches on the west side of Marcus avenue, and extending westwardly one thousand, one hundred and thirty feet. Hogan owns a tract immediately north of plaintiff's having a front on the west side of Marcus avenue of two hundred and seventy-nine feet, by a depth westwardly of one thousand, one hundred and thirty feet. Hammet owns a tract, south of plaintiff's property, having a front on the west side of Marcus avenue of five hundred and twenty-two feet by a depth westwardly of one thousand, one hundred and thirty feet.

Hammet subdivided his property so as to make a street one hundred feet in width extending westwardly from Marcus avenue, and further subdivided it into lots fronting said street on the north and south side thereof, with a depth of one hundred and ninety-three feet to such lots, and ran alleys, eighteen feet in width, along the north and south lines of his property and an alley along the west line of the same, so that each of his said lots fronted on the street and had an opening on an alley. The alley on the north end of his property was next to the south line of plaintiff's property.

Afterwards Hogan subdivided his property by opening a street fifty feet in width extending westwardly through his property from Marcus avenue, and further subdivided it into lots fronting said street on the north and south sides thereof, and having a depth of one hundred and fifteen feet each. The rear of Hogan's lots, therefore, extended to the north line of plaintiff's property.

The city approved of these subdivisions and accepted the dedications of the streets and alleys made by Hammet and Hogan.

Plaintiff in this suit seeks to have commissioners appointed to assess the damages to her property caused by the subdivisions aforesaid, and contends that the city, under the section aforesaid, has made itself liable to her in damages because it approved of the plat of Hogan's subdivision of the city, and accepted the dedications therein contained.

Plaintiff further contends that having only one hundred and forty-six feet front, by a depth of one thousand, one hundred and thirty feet, it is impossible for her to run a street through her strip of land, and thereby secure a front for lots which she might desire to lay off out of the depth of her lot.

She claims that her property has been damaged within the meaning of section 21 of article 2 of the constitution of Missouri because the alley on the north line of Hammet's addition adjoins her property and because persons building on the Hammet tract will put their outhouses next to the alley and thereby damage her, and because persons building on the south line of the lots laid off in the Hogan subdivision, will put their outhouses on the rear of the lots next to her north line, which will be an injury to her property.

Prior to the subdivision of the Hammet and Hogan property, Cottage avenue was a public highway as far west as Marcus avenue. If Cottage avenue had been prolonged westwardly in a direct line, the south line thereof would have been coincident with the north line of plaintiff's lot, and would thereby have given her a front on Cottage avenue for the full depth of the one thousand, one hundred and thirty feet of her lot. The street dedicated by Hogan is one hundred and fifteen feet north of the north line of plaintiff's property, and is named Cottage avenue. Thus Cottage avenue west of Marcus avenue is not a direct prolongation of Cottage avenue east of Marcus avenue. The same state of facts is true with reference to St. Ferdinand avenue and to North Market street, south of plaintiff's property, except that the street dedicated by Hammet is named Hammet Place instead of taking the name of either St. Ferdinand avenue or North Market street. Still further north than Cottage avenue, is Kennerly avenue, which west of Marcus avenue, is not a prolongation, on a direct line, of Kennerly avenue east of Marcus avenue.

The subjoined plat fully illustrates Hogan's subdivision and the situation of plaintiff's property.

[SEE ILLUSTRATION IN ORIGINAL]

On behalf of the city, a general demurrer was filed, and thereupon the circuit court held the petition insufficient in law, and gave judgment accordingly, from which plaintiff has appealed.

Affirmed.

Stone & Slevin for appellant.

(1) This is the proper proceeding to have damages ascertained and assessed against the city for injuring private property for public use. R. S. 1889, sec. 1815; Imler v Springfield, 30 Mo.App. 680; Taylor v. Cable Co., 38 Mo.App. 673. (2) This proceeding is not an action, but a special proceeding under the statute, and does not require the fullness and particularity of a pleading at common law, and if the petition makes a prima facie case for the appointment of commissioners under the requirements of the statute a demurrer should not be sustained. Gill v Railroad, 45 N.W. 23; Marsden v. Cambridge, 114 Mass. 490. (3) The right of the petitioner to have commissioners appointed and damages assessed does not depend upon the question as to whether or not the petitioner had any "legal right" to have a street opened up or established by the city so as to provide the most advantageous frontage to her property, as said by the circuit court, but upon the question as to whether or not the said property has been depreciated in value as a matter of fact, for the benefit of the public. Lewis on Eminent Domain, secs. 227, 131; Omaha v. Kramer, 25 Neb. 490; Trowbridge v. Brookline, 144 Mass. 139; Marsden v. Cambridge, 114 Mass. 490; Parker v. Railroad, 3 Cush. 107. (4) The words "or damaged" inserted in the constitution of Missouri in 1875, "are significant and are expressive of a deliberate purpose to change the organic laws of the state." They declare a new rule of civil conduct, from which spring new rights which did not exist prior to the constitution of 1875. Rigney v. Chicago, 102 Ill. 64-74; Sedg. on Damages, sec. 1121; City Council v. Maddox, 89 Ala. 181. (5) Property is the right to possess, use, enjoy, dispose of, rent, sell, give away and devise; anything which interferes with the beneficial enjoyment of all these rights substantially diminishes them, and lessens the value of the property. And the constitutional provision that "no private property shall be taken or damaged for public use without just compensation," was intended to protect all these essential elements of ownership which make property valuable. Sedg. on Damages, sec. 1117; Eaton v. Railroad, 51 N.H. 504; Rigney v. Chicago, 102 Ill. 74. (6) Under said constitutional provision a recovery may be had in all cases where, through the exercise of the right of eminent domain, the market value of property is diminished. Omaha v. Kramer, 25 Neb. 493; Reardon v. San Francisco, 66 Cal. 492; Atlanta v. Green, 67 Ga. 386; Railroad v. William, 45 Ark. 429; Chicago v. Taylor, 125 U.S. 161; Imler v. Springfield, 30 Mo.App. 681. (7) The injuries for which the property owner is entitled to recover must be such as directly and specially affect the corpus of the owner's property, or some property right or easement connected therewith, or by the law annexed thereto; and if such direct, peculiar and special injury depreciated the value of the property, then it is "damaged" within the meaning of the constitution. By "specially affected" is meant "in a manner not common to the property owner and to the public...