Gardner v. City of St. Joseph

• Decision Date: 01 December 1902
• Citation: 71 S.W. 63,96 Mo.App. 657
• Parties: W. E. GARDNER, Respondent, v. CITY OF ST. JOSEPH, Appellant
• Court: Kansas Court of Appeals

71 S.W. 63

96 Mo.App. 657

W. E. GARDNER, Respondent, v. CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

December 1, 1902

Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.

REVERSED.

Judgment reversed.

Kendall B. Randolph for appellant.

(1) The court erred in admitting in evidence, over the objections of the defendant, ordinance No. 2998 and the contract for the grading of Colorado avenue. Neither the ordinance nor contract was relevant to the issues made by the pleadings. The rule, too well known to need the citation of authorities is: The evidence must correspond with the allegations of the petition, and be confined to the point at issue. (2) Refused instruction B aserts a well-understood rule of law, i. e that an individual can not recover for a public nuisance, but only for a private nuisance. Rude v. St. Louis, 93 Mo. 408; Smith v. St. Joseph, 122 Mo. 648; Hickman v. Kansas City, 120 Mo. 110. (3) Refused instruction D correctly states the law of this case. There can be no damages in cases of this kind except such as arise from some physical disturbance of the right to the use of a street. (4) To refuse to give instruction E is equivalent to holding that the city would be liable to any property-holder from the mere fact that it establishes a grade, which when the work is done will cause either a cut or fill.

Martin & Walker for respondent.

(1) The court committed no error in the admission in evidence of the ordinance and contract in question. Such evidence came within the terms and allegations of plaintiff's petition. (2) No error was committed in the admission of such evidence. Smith v. Kansas City, 128 Mo. 23; Taylor v Railway, 38 Mo.App. 668. (3) No error was committed by the trial court in refusing to give instructions B, C, D and E, asked by defendant. There is no evidence in this case upon which to base instructions B and C. An instruction not predicated on the evidence is erroneous. Hays v. Bell, 16 Mo. 496; State v. Thompson, 83 Mo. 257; State v. Tice, 90 Mo. 112; Tyler v. Hall, 106 Mo. 313; Paddock v. Somes, 102 Mo. 226; State v. Parker, 106 Mo. 217; Wilkerson v. Eilers, 114 Mo. 245.

OPINION

SMITH, P. J.

It is alleged in the plaintiff's petition that he was the owner in fee simple of lots 1, 2, 3 and 4, in block 5 of Clark's addition to the city of St. Joseph--the defendant--and that said lots abut Colorado avenue on the south side thereof and Barbara street on the west. It was, however, conceded at the trial that the plaintiff did not own lots 3 and 4. The petition further alleged that the defendant under a certain ordinance caused Colorado avenue and the approaches thereto to be graded "so as to cause a cut of about twelve feet in depth at the northwest corner of plaintiff's lots to about four feet in depth at the southwest corner of plaintiff's lots on Barbara street, and about six feet in depth sixty feet east of the northwest corner of said lots in Colorado avenue," etc.

The following diagram illustrates the location of plaintiff's lot and its relation to Colorado and Barbara streets and the street improvement complained of:

[SEE ILLUSTRATION IN ORIGINAL]

At a trial of the issues before a jury the plaintiff offered to read in evidence the ordinance referred to in his petition which was to the effect that "Colorado avenue between the east line of King Hill avenue and the east line of Barbara street be graded according to the specifications on file in the office of the city engineer." To the introduction of this ordinance the defendant raised the objection that it did not provide for grading the street in front, up to or against plaintiff's lots. These objections were by the court overruled and to which ruling defendant excepted. The ordinance did not authorize the grading of Colorado avenue or Barbara street in front of plaintiff's lots. The northwest corner of plaintiff's lot 1 touches the southeast corner of the section of Colorado street which the ordinance directed to be graded. The plaintiff's lot corners with that of the graded section of said street exactly like section 12 does with section 2 in a township sectionized according to the United States land surveys. It is plain that the ordinance did not authorize the grading of either Colorado or Barbara streets at any point where plaintiff's lot abutted thereon. And if the grading had been done as alleged in plaintiff's petition on said streets in front of plaintiff's lot, it was unauthorized by the said ordinance and there could be no liability of the defendant therefor. Werth v. Springfield, 22 Mo.App. 12; S. C., 78 Mo. 107; Rives v. Columbia, 80 Mo.App. 173; Thomson v. Boonville, 61 Mo. 282; Rowland v. Gallatin, 75 Mo. 134; Stewart v. Clinton, 79 Mo. 603. These cases establish the doctrine in this State that in cases like that before us, the defendant can only be held responsible for the acts of its officers, agents and servants in changing the grade of a street when such change is authorized by ordinance. And when the allegation of the plaintiff's petition is like that already quoted, the plaintiff is required to introduce in evidence an ordinance authorizing the change of grade in order to maintain his action.

It has been several times ruled in this State that before a lotowner can recover damages for an obstruction in a street, he must show that such obstruction is in that part of the street upon which his lot abuts. Rude v. St. Louis, 93 Mo. 408 6 S.W. 257; Wallace v. Railway, 47 Mo.App. 491; Stephenson v. Railway, 68 Mo.App. 642. And this rule, we think, is equally applicable to a case like this where it is claimed by the lotowner that his lot has been rendered inaccessible by reason of an...