Imler v. City of Springfield

• Decision Date: 08 May 1888
• Citation: 30 Mo.App. 669
• Parties: PETER IMLER, Respondent, v. CITY OF SPRINGFIELD, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 669

PETER IMLER, Respondent, v. CITY OF SPRINGFIELD, Appellant.

Court of Appeals of Missouri, St. Louis.

May 8, 1888

APPEAL from the Greene Circuit Court, HON. W D. HUBBARD, Judge.

Affirmed.

R. L GOODE, for the appellant: The power to establish the grade of a street and to raise or lower it after it has once been established is vested in the city council and can only be done by a duly enacted ordinance. Rev. Stat., secs. 485, 487. If the grade be raised or lowered by city officers, agents or servants or any one else without the authority of an ordinance it is not the act of the city and the city is not liable for damages caused thereby. Dill. Mun. Corp., secs 60, 618; Cooley Const. Lim., side p. 204, top p. 248; City v. Clemens, 53 Mo. 403; Hoyle v Mallinckrodt, 46 Mo. 365; Thompson v. Boonville, 61 Mo. 283; Matthews v. Alexandria, 68 Mo. 115; Boon v. Utica, 2 Barb. 104; Fulton v. Lincoln, 2 N.W. 674; Saxton v. Beach, 50 Mo. 489; Irvin v. Devors, 65 Mo. 625; Stewart v. Clinton, 76 Mo. 604; Witter v. Cavander, 3 Mo.App. 580; Perkinson v. St. Louis, 4 Mo.App. 322; Stifel v. Dougherty, 6 Mo.App. 441; Werth v. Springfield, 78 Mo. 107; S. C., 22 Mo.App. 13. In the case at bar the surface of the street was not only raised without the authority of an ordinance but directly in contravention of an ordinance. The ordinance which prescribed the specifications for curbing and guttering, number five hundred and twenty-eight, expressly provided that the top of the curbing should be set on the true grade of the street and number five hundred and eight provided that the street should be brought to its established grade before the curbing and guttering were done. The bill of exceptions concedes that ordinance number five hundred and twenty-eight constituted the specifications according to which the contractors were to do the work. If the street's grade was raised then it was raised against the city's command and in no case could it be held liable therefor. Sheehan v. Gleason, 46 Mo. 100. The act of March 26, 1865, 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 twenty-one, of article two, of the state constitution," is not applicable to this case. Both the constitutional provision and the act enforcing it, contemplate only those cases wherein the work ordered by the municipality must necessarily damage private property, even if lawfully and skillfully done. Werth v. City, 78 Mo. 107. There is no evidence to show that the defendant was notified when and where the commission would meet to assess damages. No proof of publication, as required by the said act of March 26, 1885, was made. The doctrine of subsequent ratification cannot be invoked to make the defendant liable. The act of 1885, under which the plaintiff has proceeded, applied only to those cases where the work, as ordered and provided, is bound to injure a person's property, and in which the damage for the injury may be as well assessed before the work is done as afterwards. In this case the work which caused the damage to plaintiff, to-wit, the raising of Boonville street, was done unlawfully and improperly by the persons who did it, and if the city became in any way liable by paying for the work or ratifying their act in any other manner, it only became liable as they were, viz., in an action for negligently and improperly filling in the street. The defendant is not liable to have damages assessed against it by commissioners for raising the street because it ratified the illegal acts of its servants, unless those servants would have been liable to have damages assessed against them by commissioners if the city had not ratified their acts.

JAMES R. VAUGHAN, for the respondent: Municipal corporations are in all cases liable in damages where property is taken or damaged for public use. Mo. Const., art. 2, sec. 21; Session Acts, 1885, p. 47; Dooley v. Kansas City, 82 Mo. 440; Hunt v. Boonville, 65 Mo. 620; Worley v. Columbia, 88 Mo. 106; Harmon v. Omaha, 17 Neb. 548. The work was all done by the agents and authorities of the city, and if not done as ordered or provided for by the city in the first instance it was fully ratified by the city. A municipal corporation, like any other, can ratify the acts of its agents. 1 Dill. on Mun. Corp. [2 Ed.] sec. 385, et seq.; Holmes v. Board of Trade, 81 Mo. 140; Barrett v. County Court, 44 Mo. 198; Schumaker v. City, 3 Mo.App. 297. At the trial, as shown by the bill of exceptions, it was conceded that the damages were not too large in the event plaintiff was entitled to recover any damages in this action. This waived all question as to the publication of any notice as required by the act of 1885. It does not lie in the mouth of the city to say that a wrong has been done by us, and we have the benefit of it, but as we have not done it according to the law of our creation and government, you cannot help yourself, and are remediless. Union Depot Co. v. St. Louis, 8 Mo.App. 412; Carondelet v. St. Louis, 29 Mo. 527; Union Depot Co. v. St. Louis, 76 Mo. 393.

OPINION

THOMPSON J.

The constitution of this state (art. 2, sec. 21) provides as follows. " 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."

On the twenty-sixth of March, 1885, the legislature passed " 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 twenty-one of article two, of the state constitution." Laws of 1885, p. 47. The first section of this statute enacts as follows:

" That in all cases where the proper authorities in any city in this state have graded or regraded, or may hereafter grade or change the grade, or lines, of any street or alley, or in any way alter or enlarge the same, or construct any public improvement, thereby causing damage to private property for public use within the meaning of section twenty-one, of article two, of the state constitution, without the consent of the owner of such property; or in case they fail to agree with the owner thereof for the proper compensation for the damages so done, or likely to be done, or sustained, by reason thereof; or by reason of the legal incapacity of such owner, no such compensation can be agreed upon,--the circuit court having jurisdiction over the territory embraced in such city, or any judge thereof in vacation, on application thereto by petition, either by the city authorities or the owner of the property for which damage is claimed, or any one on behalf of either, shall appoint three disinterested freeholders of such city, who shall meet upon the premises at a time by them to be appointed, of which they shall give personal notice to the owners, or their agents, of the land affected, if they can be found, as well as five days' notice by advertisement in the newspaper doing the city printing; and the said commissioners, having been first duly sworn to perform their duties justly and impartially and a true report to make, shall view the said street, or alley, or improvement, and premises affected by the change, or enlargement, or construction thereof, having due regard to and making just allowances for the advantages which may have resulted, or which may seem likely to result to the owner or owners of property for which damages may be allowed or claimed, and after such comparison, shall estimate and determine whether any, and if any, how much, damage such property may have sustained or seems likely to sustain by reason thereof, and make report of the same at the existing or following term of the court, and if no exceptions be filed within ten days thereafter, or in the event exceptions are filed and overruled, the court shall confirm the report and enter judgment thereon with costs, including three dollars per day to each commissioner, from which judgment either or any party shall be entitled to an appeal or writ of error, as in other cases."

The eighth section enacts as follows: " 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 private property for public use within the meaning of section twenty-one of article two of the state constitution."

This is a proceeding under the above statute to assess the damages alleged to have been sustained by the plaintiff by changing the grade of the street on the margin of a lot of ground owned by him in the city of Springfield. Commissioners were appointed by the circuit court, as provided by the statute, who filed a report assessing the plaintiff's damages at two hundred dollars. Exceptions were filed to this report and were heard by the circuit court. Upon the hearing of these exceptions a mass of evidence was introduced, which was taken under advisement by the court, after which the exceptions were overruled and judgment entered against the city in conformity with the report.

The city, appealing, assigns for error that there was no evidence that, before proceeding to view the premises, the commissioners gave five days' notice by advertisement in the newspaper doing the city printing, as required by the statute. An examination of the record discloses the fact that there was no evidence that such notice was given, except that the report of the commissioners recites that five days' notice was given in the " Springfield Leader" , a newspaper doing the city printing of said city, of their meeting, and the time, place, and purpose thereof. This recital was...