James v. City of Kansas

CourtUnited States State Supreme Court of Missouri
Writing for the CourtEWING
Citation83 Mo. 567
Decision Date31 October 1884
PartiesJAMES, Appellant, v. CITY OF KANSAS.

83 Mo. 567

JAMES, Appellant,
v.
CITY OF KANSAS.

Supreme Court of Missouri.

October Term, 1884.


Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Peak, Yeager & Ball for appellant.

(1) Private property cannot be taken for public use without the owner's consent or without its being first condemned on proper legal proceedings. Hildreth v. Lowell, 11 Gray 345; Delphi v. Evans, 36 Ind. 90; City v. Armstrong, 56 Mo. 298; Soulard v. St. Louis, 36 Mo. 546. (2) The city having ratified and adopted the tortious acts of its servants in constructing said sewer upon plaintiff's land without legal authority, has adopted the trespass and is, therefore, liable to the plaintiff for damages sustained thereby. Dillon on Mun. Cor., secs. 769 and 770; Wild v. New Orleans, 12 La. Ann. 15; Thayer v. Boston, 19 Pick. 511; Sheldon v. Kalamazoo, 24 Mich. 383; City v. Armstrong, 56 Mo. 298; Mayor v. Sheffield, 4 Wall. 189. (3) The continued use of said sewer by the city is a continuing trespass, and plaintiff's cause of action did not

[83 Mo. 568]

arise until the damages were sustained by him, and is therefore not barred by the statute of limitations. Wash. on Easements, p. 663; Eastman v. Co., 44 N. H. 158; Wyland v. St. L., K. C. & N. Ry., 75 Mo. 548; Dickson v. C., R. I. & P. Ry., 71 Mo. 575; Pinney v. Berry, 61 Mo. 359; Holmes v. Wilson, 10 A. and E. 503; Thompson v. Gibson, 7 M. and W. 456.

Wash Adams and R. H. Field for respondent.

(1) Before this suit was begun, by its continued use of the sewer upon plaintiff's land for more than ten years, as testified to by him, and his acquiescence therein (by connecting his building with such sewer and using the same for draining his building) the city had acquired an easement in said land. State v. Wells, 70 Mo. 635. Such use by the city, and his acquiescence therein, operated as a transfer of title to the city to an easement in said land, and such title was properly allowed to be asserted under a general denial. Nelson v. Brodhack, 44 Mo. 596; Hill v. Bailey, 76 Mo. 454. (2) The action is not for the recovery of real estate, but for damages for trespass upon real estate and was barred by the five years statute of limitations pleaded in the answer. R. S., 1879, secs. 3228, 3230. The measure of damages for the trespass could only have been the value of the land taken and when the damages thus recovered were paid by the city such payment would have ipso facto vested the title to the land in the city. Soulard v. St. Louis, 36 Mo. 546; Jamison v. Springfield, 53 Mo. 224. The right of plaintiff to sue for the value of the land taken accrued the moment it was taken which was eight years before the suit was commenced. Wood on Lim., pp. 383, 384; Tapley v. McPike, 50 Mo. 589; Rogers v. Browne, 61 Mo. 187; Hill v. Mayor, 46 Pa. St. 15, 21. (3) The damages shown are too remote to be recoverable. Jamison v. Springfield, 53 Mo. 224; Mueller v. Ry., 31 Mo. 262; Caldwell v. Evans, 85 Ill.

[83 Mo. 569]

170; Phillips v. Dickerson, 85 Ill. 11; Bosh v. Ry., 44 Ia. 402; Saunders v. Brosius, 52 Mo. 50....

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14 practice notes
  • De Geofroy v. Merchants' Bridge Terminal Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • December 23, 1903
    ...by it, the statute will not begin to run until actual damage has resulted therefrom"—citing cases; among others, James v. Kansas City, 83 Mo. 567. In James v. Kansas City, 83 Mo. 567, it was said, "Where the damage is complete by the original act of trespass, the statute begins to run from ......
  • Hayes v. St. Louis & S. F. R. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • December 11, 1913
    ...because the nuisance causing them is permanent just the same as if the injuries are inherently permanent. In James v. Kansas City, 83 Mo. 567, 570, the court, quoting from Powers v. Council Bluffs, 45 Iowa, 652, 24 Am. Rep. 792, says: "Whenever the nuisance is of such a character that its c......
  • Tooker v. Mo. Power & Light Co., No. 33371.
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1935
    ...claimed or suggested in the instant suit. The entire cause of action had accrued when the first suit was brought. [James v. City of Kansas, 83 Mo. 567; DeGeofroy v. Merchants Bridge Ter. 80 S.W.2d 695 Ry. Co., 179 Mo. 698, 720 et seq., 79 S.W. 386; Kent v. City of Trenton (Mo. App.), 48 S.W......
  • Dilbert v. Hanover Ins. Co., 04-P-156.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 27, 2005
    ...v. State, 99 Ga. 692, 693, 26 S.E. 496 (1896) (unlawful or wrongful entry discussed interchangeably with trespass); James v. Kansas City, 83 Mo. 567, 569 (1884) (claimed wrongful entry and construction of sewer was "action for trespass to real estate"); Buehrer v. Provident Mut. Life Ins. C......
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16 cases
  • Canady v. Coeur d'Alene Lumber Co.
    • United States
    • Idaho Supreme Court
    • December 23, 1911
    ...179 Mo. 698, 101 Am. St. 524, 79 S.W. 386, 64 L. R. A. 959; Howard Co. v. Chicago & A. & R. Co., 130 Mo. 652, 32 S.W. 651; James v. Kansas, 83 Mo. 567; Smith v. Sedalia Ry., 152 Mo. 283, 53 S.W. 907, 48 L. R. A. 711; Logansport v. Uhl, 99 Ind. 531, 49 Am. Rep. 109.) SULLIVAN, J. Stewart, C.......
  • De Geofroy v. Merchants' Bridge Terminal Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • December 23, 1903
    ...by it, the statute will not begin to run until actual damage has resulted therefrom"—citing cases; among others, James v. Kansas City, 83 Mo. 567. In James v. Kansas City, 83 Mo. 567, it was said, "Where the damage is complete by the original act of trespass, the statute begins to run from ......
  • Langenberg v. City of St. Louis, No. 39842.
    • United States
    • Missouri Supreme Court
    • October 14, 1946
    ...there was no violation of appellant's rights in forcing water through said mains after the said conveyance. James v. City of Kansas, 83 Mo. 567; Blankenship v. Kansas Explorations, Inc., 325 Mo. 998, 30 S.W. (2d) 471; Stigers v. City of St. Joseph, 166 S.W. (2d) 523. (5) The right of the ci......
  • Hayes v. St. Louis & S. F. R. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • December 11, 1913
    ...because the nuisance causing them is permanent just the same as if the injuries are inherently permanent. In James v. Kansas City, 83 Mo. 567, 570, the court, quoting from Powers v. Council Bluffs, 45 Iowa, 652, 24 Am. Rep. 792, says: "Whenever the nuisance is of such a character that its c......
  • Request a trial to view additional results

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