Hoffman v. City of St. Louis

• Decision Date: 31 March 1852
• Parties: HOFFMAN v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

15 Mo. 651

HOFFMAN

v.CITY OF ST. LOUIS.

Supreme Court of Missouri.

March Term, 1852.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

R. M. FIELD & JAS. MCMARTIN for Appellant.

I. The court is referred to the following cases in which corporations have been held liable for injuries committed in the exercise of their unqestioned powers. In Lead Company v. Rochester, 3 Comstock's 3 R. 463, the city was holden liable for the unproper construction of a sewer. So in Hay v. ___ Company, and Tremain v. ___ Company, 2 Comst. R. 159 and 163, where a canal company, in carrying out the object of its incorporation, caused an injury to an individual, was held responsible for the actual damage. In Ross v. City of Madison, 1 Smith's R. 98, it is said, that corporations, like individuals, are liable for the negligence and unskillfulness of agents. In 9 Iredell, 73, it was decided, that municipal corporations are liable for the unskillful grading of streets. In Akron v. McComb, 18 Ohio R. 229, it was held, that a town was liable for digging down a street in front of the plaintiff's house.

II. But the claim of the plaintiff, in this case, may be sustained upon the principle admitted by this court, in the case of Gurno v. St. Louis, 12 Mo. R. 414, that a municipal corporation is liable for all illegal acts done under its authority. There was no authority in the corporation, to alter the established grade of the street in front of plaintiff's house. There, certainly, is no such authority conferred in terms by the charter, and considering its character and its manifest liability to abuse, it ought not to be conceded as arising by implication. See City Charter of 1843, art. 3, § 1, subdivision 8. The cases relied on by the respondent's counsel, do not seem to be altogether applicable. In Callender v. Marsh, 1 Pick. 431, no grade had been established by public authority, previously to the acts complained of. In 17 Wend. 649, the point did not arise in the case, and consequently, the strong language of the Judge, in delivering the opinion, is not to be quoted as authority. In Goszler v. Georgetown, 6 Wheaton, the court lay stress on the particular phraseology of the charter, which was “to pass ordinances for the guaduation of the streets, as they shall deem proper. The legislative power thus conferred, without limitation, was held to be a continuing one.

J. C. RICHARDSON, City Counselor.

I. The 8th clause of the 2nd section article 3, of the Charter of 1843, confers upon the city the power to grade streets, avenues, lanes and alleys. It is a legislative power, for the exercise of which, the defendant cannot be made responsible, and any inconvenience or loss to an individual, would be damnum absque injuria. In the case at bar, Clark avenue was a public highway, and the agreed case expressly negatives the imputation, that the work was negligently or wantonly done. So that the naked question is presented, whether a municipal corporation is liable for damages consequential upon the grading of a street. If any question ought to be considered as settled, this is one, for it has recently been considered by this court in two cases, Gurno v. The City of St. Louis, 12 Mo. R. 414, and Taylor v. The City, 14 Mo. R. 20. These cases are well sustained, not only by sound reasoning, but by authority. 1 East, 362; 6 Taunton, 42; 4 Term R. 794; 9 Watts, 382; 4 Watts & Serg. 516; 1 Pick. 418; 1 Denio, 597; 6 Wheat. 593. If the defendant is made liable in this case, it will be difficult to say on what principle it ought to be done, and to prescribe a rule and measure of responsibility, which will not become mischievous in its operation, and utterly defeat the purpose for which municipal corporations were created. The principle on which the liability is established, cannot be controlled by the amount of damage a party may sustain, for a man who is injured to the amount of ten dollars, ought to have his action as well as one who is injured to the amount of a thousand. Such a liability would be disastrous, and the city could not pave, grade or repair a single populous street without being ruined; for, the repairing of a gas lamp, the laying of a water pipe, or the re-setting of a pavement, would obstruct the side-walk, and injure the merchant on the street, by driving away his customers. Where would the liability cease?

II. The power to grade a street implies the power to alter the grade; it is a continuing power, which is not exhausted when it is once exercised. See 17 Wend. 648; Callender v. Marsh, 1 Pick. 431; Goszler v. The Corporation of Georgetown, 6 Wheat. 593.

RYLAND, J.

The city of St. Louis passed an ordinance, on the 14th September, 1843, by which it fixed the grade of Clark avenue--a public street of said city. The appellant became the proprietor of a lot on Clark avenue, 120 feet in front, and erected two dwelling-houses along the front of his lot, conforming to the grade as established by the forementioned ordinance, and having their lower stories level with the ground. On the 19th of August, 1851, the city passed an ordinance changing the grade of Clark avenue, and agreeably to its provisions, proceeded to fill up the street in front of appellant's dwelling-houses, so as to render them of materially less value. The last mentioned ordinance was passed on petition of many of the lot-owners on the avenue, and without any actual intention to injure the appellant. An agreed case, containing the forementioned facts, was submitted by the parties to the St. Louis Court of Common Pleas. That court gave judgment for the city, and Hoffman brings the case to this court by appeal.

The principles involved in this case, have heretofore, for the most part, been settled by this court, in the case of Gurno v. The City of St. Louis, 12 Mo. R. 412, and Taylor, v. The City of St. Louis, 14 Mo. R. 20. So far, therefore, as these cases are applicable to the present case, they will control it.

The appellant however, contends, that there is a manifest distinction between these cases and the one now before the court. In the present the injury arises not from the exercise by the city, of the power to grade the streets, &c., but from the exercise of a power to change and alter the grade of a street, after having once fixed it. It is the alteration of this grade that now causes the injury, not the mode and manner of making it originally. This alteration materially lessens the value of the dwelling-houses first erected in conformity with the then established grade of the avenue.

The question resolves itselves into this: does the power to grade streets, & c., become exhausted when once exercised, or is it a continuing power, in the hands of the corporation, to be exercised as the judgment of that body may determine, for the good of the whole?

The charter of the city contains the following clause (art 3, § 2, 8th clause of the section): “To open, alter, abolish, widen, extend, establish, grade, pave or otherwise improve, clean and keep in repair, streets, avenues, lanes, and alleys; but the mayor and city council shall not establish nor open a street, lane, avenue...