Grover v. Cornet
| Decision Date | 16 June 1896 |
| Parties | Grover et al., Appellants, v. Cornet et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Affirmed.
John R Warfield for appellants.
(1) As abutting owners the plaintiffs are entitled to maintain this action. Lewis on Eminent Domain, sec. 100; Elliott on Roads and Streets, pp. 302 and 518; Ross v. Thompson, 78 Ind. 89; Cole v. Drew, 44 Vt. 49; S. C., 8 A. M Rep. 363; Roberts v. Saddler, 104 N.Y. 229; Angell on Highways, sec. 301; 2 Waterman on Trespass, sec. 693, p. 80; Gidney v. Earl, 12 Wendell, 98; Bridge Co. v. Schaubacher, 57 Mo. 582; Julia Bldg. v. Bell Tel. Co., 88 Mo. 258; Mills on Eminent Domain, secs. 55, 56; Spencer v. Railroad, 120 Mo. 154; Heinrich v. St. Louis, 125 Mo. 424, 626. (2) Trespass will lie against all the participants in this case. Rowland v. Gallatin, 75 Mo. 134; Humbser v. Scott, 5 Mo.App. 597; Welch v. Stewart, 31 Mo.App. 376; Williamson v. Fisher, 50 Mo. 198. (3) The rule as to the measure of damages in such actions. Holliday v. Jackson, 21 Mo.App. 660; Bennett v. Thompson, 13 Ired. 146; Waterman on Trespass, sec. 1095, p. 539; Longfellow v. Quimby, 33 Maine, 457; Markowitz v. Kansas City, 125 Mo. 485. (4) Benefits to property can not be considered in this action. Bishop on Noncontract Law, 101, and cases cited; Mairs v. Manhatten R. E. Ass'n, 89 N.Y. 498; Mettler v. People, 36 Ill.App. 324. (5) Any change of grade from the natural surface in a road or street is a "damaging for public use," for which the abutting owner is entitled to compensation before his property can be disturbed, or his proprietary rights therein divested. Hickman v. City of Kansas, 120 Mo. 110; Constitution Mo. 1875, sec. 21, art. 2; Cooley on Constitutional Limitations, p. 694; Bradley v. Railroad, 91 Mo. 493; Dodd v. Railroad, 108 Mo. 581; Lewis on Eminent Domain, 456, and cases cited; Davis v. Railroad, 119 Mo. 180; Smith v. St. Joseph, 122 Mo. 643; Bloomington v. Pollock, 141 Ill. 346; Elgin v. Eaton, 83 Ill. 535. (6) The court gave erroneous and improper instructions and refused proper and legal instructions. Authorities supra.
Lubke & Muench for respondents.
(1) On the first count, the question arises whether plaintiffs could maintain a statutory action of trespass, and, if so, whether they could recover for aught, except such "clay or mold" as they proved by a preponderance of evidence was converted to the private use of defendants. We answer both propositions in the negative. First. In order to maintain trespass, the plaintiff must have been in possession, and a disturbance of that possession must underlie any action under section 8675, Revised Statutes, 1889. Moore v. Perry, 61 Mo. 174; Zeitinger v. Hackworth, 117 Mo. 505; Mo. Lumber, etc., Co. v. Zeitinger, 45 Mo.App. 114. Second. The possession of a public street is in the public, i. e., in the public authorities, who, as here, are charged with its preservation, repair, and improvement. Dillon on Mun. Corp., sec. 683; Quincy v. Jones, 76 Ill. 231, 244. Third. While it is conceded that the adjoining owner holds the fee in the underlying soil of the street, yet the control of the street itself is in the public authorities with all the necessary power to grade, pave, or otherwise improve the same, to adopt it to its proper uses. Angell on Highways, secs. 216, 301; Elliott on Roads and Highways, pp. 300-338, 523; Gibson v. Owen, 115 Mo. 258; Dillon, Mun. Corp., sec. 685. Fourth. Nor is this power exhausted by being once exercised, but may be exercised again, as public necessity requires. Elliott on Roads and Highways, p. 335; Moreley v. Carpenter, 22 Mo.App. 640. Fifth. The soil taken from one portion of the street may be used on another part of the same general system. Robert v. Saddler, 104 N.Y. 229, 232; Elliott on Roads and Highways, p. 523. Sixth. The public authorities, not the courts, are the proper judges of the necessity or expediency of public work. Their discretion, honestly exercised, will not be reviewed. Elliott on Roads and Highways, p. 335, and cases cited; Dillon on Mun. Corp. [3 Ed.], sec. 832. (2) The question as to whether or not any of the earth excavated from in front of appellants' land was deposited on private ground of respondent Cornet, was put to the jury on proper instructions and answered in the negative. There being a conflict of evidence, with its weight preponderating in favor of respondents, the verdict is conclusive. On this the authorities are uniform in this state. (3) The alleged cause of action in the first count was wholly in the husband. A finding in favor of the wife on that count would have been entirely erroneous. Ellis v. Railroad, 63 Mo. 131; Whalen v. Baker, 44 Mo.App. 290. (4) Appellants can not complain of the amount of their recovery, because they offered no evidence whatever as to what was the depreciation or proximate damage, from the grading; and respondents offered evidence that there was no damage. The recovery should have been nominal. Autenrieth v. Railroad, 36 Mo.App. 257; Brown v. Railroad, 80 Mo. 457; Markowitz v. Kansas City, 28 S.W. 642. (5) It was proper to caution the jury that from any ascertainment of damages they should deduct any special benefit to this property. Hickman v. Kansas City, 120 Mo. 110. This land was specially benefited by the grading of the road, because it was thenceforth saved from overflows, and had its mansion-house brought on a level with the street, instead of remaining three feet below. (6) It follows from the foregoing that the court's instructions were certainly as favorable to appellants as they could expect. If error was committed, it was committed against respondents.
This is an action in two counts for damages alleged to have been suffered by plaintiffs by reason of the working of a county country road in St. Louis county adjacent to the property of plaintiff, Mrs. Grover, in which her coplaintiff and husband, has an estate by the curtesy.
This public road is designated in the record and known in the community as Plymouth avenue, running from the western limits of the city of St. Louis, westwardly, across the river Des Peres to Hillside, a suburban station on the Wabash railroad. As originally established the road was sixty feet wide. In May, 1893, there was a foot bridge over the Des Peres river at the point where Plymouth avenue intersected it, but no wagon bridge, and a number of property owners along the line of the road addressed a petition to the county court of St. Louis county in which they represented this road was in an impassable condition because never graded or worked west of the river Des Peres; that the stream had never been bridged and the road needed repairs, and concluded with an offer on the part of the petitioners who owned real estate west of the river to do the necessary grading and filling amounting to about three thousand yards of dirt, according to a profile then shown to the county court, provided the county would erect a suitable bridge over the river.
The county court accepted the proposal on the condition that the work of grading be done to the satisfaction of the court and the county's commissioner of roads and bridges. The county thereupon erected a bridge over the Des Peres and in doing so cut off a considerable curve in the stream. The pier on the east side rose about five feet above the bank and that on the west nine feet above the bed of the stream. The deflection of the street lay for some considerable distance immediately along the said road, Plymouth avenue, so that a fill of some eight feet in Plymouth avenue was required for a considerable distance west of the bridge, and there were other depressions and uneven places between the bridge and Hillside station.
Nearly all the land on both sides of the road west of the bridge was owned by defendant Cornet, some of it near the stream being very low and below the grade and other portions being on a knoll or hill near the station on the north side of the road.
Messrs. Rothwell Brothers were employed to do the grading and filling, which they did under the direction of Mr. Berkeley E. Johnson, a civil engineer, and the inspection of the county road commissioner.
The work out of which this action grew consisted in grading Plymouth avenue, from the city limits to the river Des Peres, leading over a steep hill, down to a rounded roadbed of thirty feet in the clear from water run to water run, leaving sidewalks on either side and leaving shade trees which had been planted on the sides in the road undisturbed. The deepest cut by actual measurement was three and one half feet on the summit of the hill and average cut about two feet. On the west side of the bridge a fill ten feet high was made. A second depression was about eight feet deep which was filled. Behind the abutments it was necessary to fill in the dirt to hold them. The east side being low it was necessary to make a roadbed by filling. The property of defendant Cornet was filled and graded at the same time by dirt procured by cutting down his hill near Hillside station; at least such appears to be the burden of the testimony.
Mr. Grover testified he was at home when the grading commenced and then left home to attend court at Liberty, Missouri, and was gone until it was completed.
Part of the earth had been used to make the approach to the bridge and the remainder went on Mr. Cornet's land. The evidence very clearly established that prior to this grading Mr. Grover, or some prior owner, had constructed an embankment along his front to keep the water from the road from running into Mrs. Grover's lot. Her lot slopes from the road back to her...
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