Hickman v. City of Kansas

• Decision Date: 13 February 1894
• Citation: 120 Mo. 110,25 S.W. 225
• Parties: HICKMAN v. CITY OF KANSAS.
• Court: Missouri Supreme Court

25 S.W. 225

120 Mo. 110

HICKMAN v. CITY OF KANSAS.

Supreme Court of Missouri.

February 13, 1894.

EMINENT DOMAIN — PROPERTY TAKEN OR DAMAGED FOR PUBLIC USE — ASCERTAINMENT OF DAMAGES — EXCLUSIVE PROCEEDINGS — ESTABLISHING GRADE OF STREET — MEASURE OF DAMAGES — ESTOPPEL.

1. Const. art. 2, § 21, providing that compensation for property taken or damaged for public use shall be ascertained by a jury or commissioners, as may be prescribed by law, and, until the same be paid, the property shall not be disturbed, is self-enforcing; and, if the legislature fail to provide for the ascertainment and payment of compensation, resort may be had to any common-law action which will afford relief.

2. An act providing for proceedings for ascertaining damages without giving the landowner the right to initiate them, or process to compel payment of the damage after it is ascertained, does not provide a substitute for the remedies to which the owner is entitled under the constitution, and is not exclusive.

3. Under Const. art. 2, § 21, providing that compensation shall be made for property "damaged for public use," a city is liable to an abutting property owner for damages caused by changing the natural surface of a street to a grade established for the first time. Davis v. Railway Co., (Mo. Sup.) 24 S. W. 777, followed.

4. The compensation for property "damaged by public use" should be such a sum as will compensate for the damage, less any special benefit resulting to the property, but not less general benefits shared in common with other property in the neighborhood.

5. Where a city establishes the grade of a street, and a street-railway company, in order to lay its track, fills part of the street to the grade line, a request by an abutting property owner that the grading be finished does not estop him to recover damages from the city, caused by establishing the grade.

In banc. Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by William T. Hickman against the city of Kansas for damages caused by establishing the grade of a street. There was a judgment for plaintiff, and defendant appealed to the Kansas City court of appeals, from which the case was certified to the supreme court. Judgment affirmed.

R. W. Quarles, W. A. Alderson, F. F. Rozzelle, W. S. Cowherd, and James Black, for appellant. W. C. Scarritt and Karnes, Holmes & Krauthoff, for respondent.

BRACE, J.

This is an action, commenced in the circuit court of Jackson county, for damages to plaintiff's property occasioned by a change of the grade of Ninth street, in said city, in which the plaintiff obtained judgment for $1,000, from which the defendant appealed to the Kansas City court of appeals, and the case is certified here, under the constitutional amendment, as involving the decision of a constitutional question. Plaintiff's property, which he claims was damaged by the action of defendant, abuts on Ninth street. Previous to the extension of the city limits in 1885, Ninth street was a county road, which had been graded and used as such for many years, both sides of which, in the vicinity of plaintiff's property, had been built up with residences and stores for a considerable distance beyond the city limits. The plaintiff bought his property in 1883, and the next year built upon and improved it with reference to the then existing grade. In October, 1884, the Kansas City & Independence Railway Company obtained the consent of the county court to build and operate a cable street railway on said road or street; the court, in its order, providing that the company should build its line of railway upon the grade of the street as then maintained, and should in no wise disturb the surface of the street in such manner as to impair its usefulness, or prevent the flow of water along and across the same. In the latter part of 1885 the limits of the city were extended so as to take in that part of said road or street in front of plaintiff's property. By ordinance approved April 15, 1886, the city changed the grade of said street in front of plaintiff's property to the present established grade, which raised the grade in front of said property about 3½ feet. In the mean time all the rights and franchises of the Kansas City & Independence Railway Company, which had never availed itself of the privilege aforesaid granted by the county court, passed to the Kansas City Cable Railway Company, which latter company, soon after the passage of said ordinance, constructed the line of road on the grade established by said ordinance, filling in the street in the center thereof up to said grade to the width of about 20 or 22 feet. Afterwards, the city, under an ordinance approved November 19, 1886, filled up and graded the street on each side of this roadbed to the full width of the street (50 feet.) The evidence tended to show that after the railroad company constructed its road, and before the city finished the grading, the street in front of plaintiff's property was left in such a condition as to render it impassable, and to necessitate the completion of the grading by the city; that the raising of the grade necessitated the filling of plaintiff's lot, the raising of his house and other structures, and the readjustment of all of his improvements to conform to the established grade, at a cost of about $1,000. The court, after refusing certain instructions asked by defendant, among them two instructing the jury that on the pleadings and evidence the plaintiff could not recover, submitted the case to the jury on other instructions, which will be noted, as far as necessary, in the course of the opinion.

1. By the constitution of 1875 it is provided "that private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders in such manner as may be prescribed by law, and until the same be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner therein divested." Const. art. 2, § 21. Prior to the adoption of this constitution of 1875, (although the doctrine was vigorously attacked in Thurston v. City of St. Joseph, 51 Mo. 510, in the opinion of Judge Adams,) it was uniformly held that any damage resulting to an abutting property owner from a change of grade was damnum absque injuria, for which the municipality was not liable unless the injury could have been shown to have resulted from the negligent or improper manner in which the work was done. City of St. Louis v. Gurno, 12 Mo. 415; Taylor v. St. Louis, 14 Mo. 23; Hoffman v. St. Louis, 15 Mo. 651; Schattner v. City of Kansas, 53 Mo. 162; Imler v. City of Springfield, 55 Mo. 119; Wegmann v. City of Jefferson, 61 Mo. 55; Swenson v. City of Lexington, 69 Mo. 157; Stewart v. City of Clinton, 79 Mo. 603. To uproot this doctrine, and provide for compensation when property is damaged as well as when it is taken for public use, the eminent domain clause in the constitution of 1865 was amended by the constitution of 1875 to read as quoted, and since it has been considered the settled law in this state that "when property is damaged by establishing the grade of a street, or by raising or lowering the grade of a street previously established, it is damaged for public use, within the meaning of the constitution." Werth v. City of Springfield, 78 Mo. 107; State v. City of Kansas, 89 Mo. 34, 14 S. W. 515; Householder v. City of Kansas, 83 Mo. 488; Sheehy v. Railway Co., 94 Mo. 574, 7 S. W. 579; Gibson v. Owens, 115 Mo. 258, 21 S. W. 1107. It is also well-settled law that this article of the constitution gives an absolute right, and is self-enforcing; and, although the legislature may have enacted no law providing a mode for the ascertainment and payment for the compensation provided for, resort may be had, by the party entitled to the right, to any common-law action which will afford him adequate and appropriate means of redress. Householder v. City of Kansas, 83 Mo. 488; Sheehy v. Railway Co., 94 Mo. 574, 7 S. W. 579; Keith v. Bingham, 100 Mo. 300, 13 S. W. 683.

2. The defendant's first contention is that this action, commenced on the 19th day of September, 1887, is not maintainable, for the reason that by a law then in force, being an act entitled "An act to provide for the ascertainment of, and payment for, damages done by municipal corporations to private property for public use, as directed by section 21, article 2, of the state constitution," approved March 26, 1885, (Sess. Acts 1885, p. 47,) amended by an act approved March 31, 1887, (Sess. Acts 1887, p. 37,) provision was made for the recovery of damages in cases like the one in hand, and that by section 8 thereof it was provided that "the above proceedings shall be exclusive of all other remedies in the courts of this state for the recovery from any municipal corporation of damages done to any private property for public use, within the meaning of section 21, article 2, of the state constitution." The rule is that if the statute gives a remedy in the affirmative, without containing any express or implied negative, for a matter which was actionable at common law, this does not take away the common-law remedy, but the party may still sue at common law as well as upon the statute. In such cases the statute remedy will be regarded as merely cumulative. But where a new right or means of acquiring it is given, and an adequate remedy for violating it is given, in the same statute, then the injured parties are confined to the statutory remedy. State v. Bittinger, 55 Mo. 596; Lindell v. Railroad Co., 36 Mo. 543; Soulard v. City of St. Louis, Id. 546. As we have seen, the right which plaintiff had in this case was not a common-law right. It was a new right; not a statutory right, strictly speaking, but a constitutional right, — to have his damages ascertained and paid to him, or...