Hickman v. City of Kansas

• Decision Date: 05 February 1894
• Parties: Hickman v. The City of Kansas, Appellant
• Court: Missouri Supreme Court

25 S.W. 225

120 Mo. 110

Hickman v. The City of Kansas, Appellant

Supreme Court of Missouri

February 5, 1894

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

F. F Rozzelle, W. S. Cowherd, James Black, R. W. Quarles and W. A Alderson for appellant.

(1) The act of the legislature, approved March 26, 1885, was exclusive. Baker, Adm'r, v. Railroad, 36 Mo 543; Railroad v. Oakes, 20 Ind. 9; State v. Bittinger, 55 Mo. 596; McCormack v. Railroad, 9 Ind. 283; Baird v. Wells, 22 Pick. 312; Leland v. Woodbury, 4 Cush. 245; Hull v. Westfield, 133 Mass. 433; Tower v. Boston, 10 Cush. 235; Stafford v. Ingersoll, 3 Hill, 38; Sedg. on Construc. of Stat. and Const. Law [2 Ed.], 76, 341, note a, 343, 344. (2) Instruction number 5, given for the respondent and that numbered 6 given at the request of the appellant are palpably inconsistent. The one declared that the appellant was liable to the respondent for the grading done by the Kansas City Cable Railway Company, the other that the appellant was not liable therefor. (3) The appellant is not liable for any damage caused respondent's property by the grading done by the Kansas City Cable Railway Company. For this reason the judgment should be reversed and the case dismissed. Charter of appellant city, art. 8, sec. 1; Acts of 1875, 250; Thompson v. Boonville, 61 Mo. 283; Thrush v. Cameron, 21 Mo.App. 394; Stewart v. Clinton, 79 Mo. 603; Werth v. Springfield, 22 Mo.App. 12; S. C., 78 Mo. 107. (4) Nor is the appellant liable to the respondent for any damage caused his property by the grading of Ninth street along the sides of the roadbed of the cable railway, because the respondent not only requested, but urged the appellant to do this grading. This is an admitted fact, and it is also admitted that he petitioned in writing for the construction of the cable line. Volenti non fit injuria. Instruction number 5, given for plaintiff, was, for this reason also, erroneous. For this reason the judgment should be reversed and the cause dismissed. Cross v. Kansas City, 90 Mo. 13; Railroad v. Farrell, 76 Mo. 183; Vaile v. Independence, 22 S.W. 695; Burkam v. Railroad, 122 Ind. 344. (5) There can be no damages resulting from the reduction of a street from the natural surface to a grade established for the first time. Dillon on Municipal Corporations [4 Ed.], sec. 995b; Gardiner v. Johnstown, 16 R. I. 94; Anderson v. Bain, 120 Ind. 254; Callender v. Marsh, 1 Pick. (Mass.) 431; Kappel v. Keokuk, 61 Iowa 653; Akron v. Co., 34 Ohio St. 334; Aldrich v. Providence, 12 R. I. 241; Denver v. Vernia, 8 Col. 404; Rigney v. Chicago, 102 Ill. 83; In re Levering Street, 14 Phila. 349. (6) Where the owner, or his grantor, has dedicated the street for public use, neither can recover for damages resulting from the establishment of a grade for the first time. Dillon on Municipal Corporations [4 Ed.], sec. 995a; Cooley's Const. Lim. [6 Ed.], p. 683. Dedication was for street purposes. See R. S. 1889, sec. 7309; Denver v. Bayer, 7 Col. 113. (7) The proper measure of damages in this case is the difference between the value of the property before and the value after the change of grade, and not that given in instructions numbers 1 and 3 for plaintiff. Springer v. Chicago, 26 N.E. 515; Sheehy v. Railroad, 94 Mo. 580; Taylor v. Railroad, 38 Mo.App. 672; Chambers v. Borough, 140 Pa. St. 510; Meyer v. City, 52 Iowa 560; Church v. Milwaukee, 31 Wis. 512; Coal Company v. Chicago, 26 F. 415; Smith v. Floyd Co., 85 Ga. 420; City Council v. Maddox, 89 Ala. 181; Chicago v. Taylor, 125 U.S. 169; Depuis v. Railroad, 115 Ill. 99; Harwood v. Bloomington, 124 Ill. 50; Railroad v. Matthews, 34 Cent. Law J. (Ala.) 158; Denver v. Bayer, 7 Col. 127.

Scarritt & Scarritt and Karnes, Holmes & Krauthoff for respondent.

(1) The appellant complains that the respondent has pursued the wrong remedy in this case, and that he should have resorted to the appointment of commissioners to assess his damages, under the provisions of the act of 1885. A sufficient answer to this is, that the defendant has waived any right to abate this suit by answering to the merits and going to trial thereon. The act of the legislature referred to applies only to the remedy, and does not affect the jurisdiction of the court over the subject-matter of the suit or the person of the defendant, and is a mere matter of abatement, which is waived, if not pleaded. Grove v. City of Kansas, 75 Mo. 674; Elfrank v. Ceiler, 54 Mo. 136; Russell v. Ins. Co., 55 Mo. 593, 594; Ganse v. Clarksville, 1 F. 359; Sheppard v. Graves, 14 Howard (U.S.), 509; Society v. Pawlet, 4 Peters, 501. (2) The proper measure of damages in this case is stated in instructions numbers 1 and 3, given by the court on behalf of the plaintiff. Bridge Co. v. Ring, 58 Mo. 491; Springfield v. Schmook, 68 Mo. 395; Railroad v. Richardson, 45 Mo. 466; Sheehy v. Railroad, 94 Mo. 574-579; Railroad v. Ridge, 57 Mo. 600; Railroad v. Waldo, 70 Mo. 629; Lee v. Railroad, 53 Mo. 179; Railroad v. Chrystal, 25 Mo. 544; Newby v. Platte Co., 25 Mo. 275, 276; Taylor v. Railroad, 38 Mo.App. 671. (3) Damages may be claimed for the grading of a street to the first established grade. Werth v. Springfield, 78 Mo. 110; Smith v. Railroad, 98 Mo. 20. Instruction number 5 given for respondent and number 6 given for appellant are not inconsistent. Besides, instruction number 6 is not supported by the evidence.

OPINION

In Banc

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 was 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 and Independence Railway Co. 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 three and one half feet. In the meantime all the rights and franchises of the Kansas City and Independence Railway Co., who had never availed themselves of the privilege aforesaid granted by the county court, passed to the Kansas City Cable Railway Co., 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 twenty or twenty-two 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, (fifty 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 in of plaintiff's lot, the raising of his house and other structures, and the readjustment of all 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.

I. 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 shall 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, sec. 21.

Prior to the adoption of the constitution of 1875, (although the doctrine was vigorously attacked in Thurston v. City of St. Joseph, 51 Mo. 510, in the opinion by 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 be shown to have resulted from the negligent or improper manner in which the work was done. St. Louis v. Gurno, 12 Mo. 414; Taylor v St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Schattner v. City of Kansas, 53 Mo. 162; Imler...