Harman v. City of St. Louis

• Decision Date: 09 February 1897
• Citation: 137 Mo. 494,38 S.W. 1102
• Parties: HARMAN v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

38 S.W. 1102

137 Mo. 494

HARMAN v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri.

February 9, 1897.

MUNICIPAL CORPORATIONS — LIABILITY FOR FAILURE TO ENFORCE ORDINANCE — DAMAGES FOR PUBLIC NUISANCE — SUFFICIENCY OF PETITION.

1. A city is not liable for damages by a property owner because it failed to prevent the erection of a wooden building on an adjoining lot, in violation of an ordinance.

2. A petition alleging that defendants have erected and maintained a frame building on lots adjoining a building owned by plaintiff, in violation of a city ordinance, and which is a public nuisance under such ordinance, and that plaintiff's property has been damaged thereby, states a good cause of action for damages as against a demurrer. Sherwood, J., dissenting.

In banc. Appeal from St. Louis circuit court.

Action by Henry Harman against the city of St. Louis and others to recover damages. A general demurrer to the petition was sustained, and judgment rendered for defendants, from which plaintiff appeals. Affirmed as to the city defendant, and reversed as to the other defendants.

Henry M. Post, for appellant. W. C. Marshall, for respondent city of St. Louis. J. P. Vastine, for other respondents.

ROBINSON, J.

This is an action to recover from the city of St. Louis and the other defendants, who are contiguous lot owners to plaintiff, damages caused to him by the erection and continuance of certain frame buildings adjoining his property in violation of the city ordinances, based upon the following petition: "Now comes Henry Harman, the above-named plaintiff, and by leave of court, first had and obtained, files this his amended petition in the above-entitled cause. And for his amended petition plaintiff says that the above-named defendant the city of St. Louis is a municipal corporation, organized and existing under the laws of the state of Missouri, and was so at the time of the circumstances set forth herein, and that the said defendants Andrew Hoolan and Julia Hoolan are husband and wife. Plaintiff further states that he is the owner and in possession of a certain lot of ground in said city, having a front of twenty-five feet on the north line of Garfield avenue by a depth of one hundred and twenty feet, being known and designated as lot numbered 11 of city block numbered 1,871 of said city, on which plaintiff has erected a brick dwelling house, at a cost of twenty-five hundred dollars, which plaintiff has heretofore rented to tenants and received a large revenue therefrom. Plaintiff further states that said defendants Nannie Carroll, Bridget Carroll, Margaret A. Carroll, Andrew J. Carroll, Julia Hoolan and Andrew Hoolan, and Mary Ann Carroll are the owners and in possession of a lot or lots of ground in said city block immediately adjoining said lot owned by plaintiff, as aforesaid. Plaintiff further says that, by provisions of sections 697 and 733 of article 3 of chapter 16 of the Revised Ordinances of said city of St. Louis, it is unlawful for any person to erect or maintain any building in said city without having first obtained a permit authorizing the same from the commissioners of public buildings; and that by the provisions of sections 754, 756-758, of said Revised Ordinances, being parts of article 5 of chapter 16, it is made unlawful for any person to erect or maintain any shed or wooden building or frame building within a certain part of said city defined by said sections of said ordinances, in which said part the lots owned by plaintiff and the said defendants Carrolls and Hoolans are situated, without having first obtained from said commissioner of public buildings of said city a permit for the erection of such building; and it is further provided in said sections of said ordinances that no such permit shall be issued unless the majority of the owners of the property in the city block in which such building is proposed to be erected shall give their consent thereto in writing; and that it is further provided by said sections of said ordinances that within said part of said city even with the written consent of a majority of the owners of the property in such block, no permit shall be issued for frame sheds or stables larger in area than 20 by 35 feet by 16 feet high, and such as are permitted can only be erected on the rear of the lots. But plaintiff says that heretofore, and subsequent to the erection by plaintiff on his said lot of the brick dwelling house above mentioned, said defendants Carrolls and Hoolans have unlawfully erected, or caused or suffered to be erected, and now maintain, on said ground owned by them adjoining plaintiff's said lot, a wooden stable or building or buildings, or shed or sheds, in violation of said sections of said ordinances, in that no written consent for the erection of said building was obtained from the majority of the owners of the property in said block, in that no permit was obtained from the commissioner of public buildings for the erection of said building or buildings, and in that said building or buildings far exceed in dimensions the area prescribed by said ordinances for such building as under any circumstances might have been permitted on said ground, said building or buildings erected by said defendants as aforesaid covering an area more...