Johnson v. City of St. Louis, 2,863.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 172 F. 31
• Docket Number: 2,863.
• Parties: JOHNSON v. CITY OF ST. LOUIS.
• Decision Date: 06 July 1909

172 F. 31

JOHNSON
v.
CITY OF ST. LOUIS.

No. 2,863.

United States Court of Appeals, Eighth Circuit.

July 6, 1909

[172 F. 32]

(Syllabus by the Court.)

The damage to a four-story brick building and its contents by the laying by the city of St. Louis of a sewer in an adjoining alley below the plane of the foundation of the building, after the owner knew in time to prop and protect his building that the sewer was to be laid, and that there was danger that it would cause his building to crack and settle, whereby the lot in its natural state would not have been caused to settle or crumble, but whereby the building was cracked, and it and its contents were injured to the amount of tens of thousands of dollars, is, according to the decisions of the Supreme Court of Missouri, damnum absque injuria, and the owner is not entitled to any compensation therefor under the amended Constitution of that state (article 2, Sec. 21 (Ann. St. 1906, p. 148)), which provides that private property shall not be taken or damaged for public use without just compensation.

A private party is liable for damages caused to an adjoining lot by his removal of lateral support to such an extent that the lot in its natural state would settle or crumble, but for nothing more.

If his removal of lateral support would not have caused the adjoining lot to settle or crumble in its natural state, he is not liable for damages which result because the superincumbent weight of buildings or other ponderous things contribute to the settlement of the lot.

In the construction of the Constitution and statutes of a state, the national courts uniformly follow the interpretation announced by the highest judicial tribunal of the state, where no question of general or commercial law or of right under the Constitution of the United States or the acts of Congress is involved.

Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M.R. Co. v. Morgan, 21 C.C.A. 478; Union & Planters' Bank v. City of Memphis, 49 C.C.A. 468.)

The character and extent of the powers and liabilities of the political or municipal corporations of a state are questions of construction of state Constitutions and statutes, upon which the decisions of the highest judicial tribunal of the state which creates them are generally controlling in the national courts, and when that court has decided one of these questions the decisions of the courts of other states and of the federal courts in the construction of the Constitutions or statutes of other states are immaterial.

A citizen of one state, who holds the title to property in trust for others, may maintain an action for damage to it against a citizen of another state in the proper federal court, without regard to the citizenship of his cestui que trust.

Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C.C.A. 249; Mason v. Dullagham, 27 C.C.A. 298.)

The president of a joint-stock company, the American News Company, empowered by the statute of New York, under which it was organized, to sue in its behalf, may maintain an action for injury to its property in a national court in the state of Missouri.

Jurisdiction as affected by state laws, see note to Barling v. Bank of British North America, 1 C.C.A. 513.)

The Missouri statutes, which forbid unqualified foreign corporations doing business in that state from maintaining suits in the courts of the state, do not affect their right to maintain suits in the national courts, because the jurisdiction of the latter may not be revoked, annulled, or impaired by any act or law of a state.

The failure of a foreign corporation doing business in a state to comply with qualifying statutes does not deprive it of the liability of one who injures or destroys property which it owns to pay for the legal injury he inflicts, nor of its right to maintain an action upon that liability in the federal courts.

T. K. Skinker, for plaintiff in error.

Benjamin H. Charles and A. H. Roudebush, for defendant in error.

SANBORN, Circuit Judge.

Prior to 1875, the Constitution of the state of Missouri contained this provision:

'That no private property ought to be taken or applied to public use without just compensation. ' Section 16, art. 1 Const. 1865

In that year this Constitution was so amended that it has since read in this way:

'That private property shall not be taken or damaged for public use without just compensation. ' Section 21, art. 2 (Ann. St. 1906, p. 148).

In 1903 the city of St. Louis caused a sewer to be laid in an alley by the side of the plaintiff's four-story brick building in a plane several feet below that of the foundation of this structure. The excavation for and the construction of this sewer did not encroach upon plaintiff's lot, and, if the lot had been in its natural condition, they would not have caused it to crumble or settle; but they so diminished the lateral support of the lot that it did not sustain the weight of the building, and in this way the laying of the sewer caused the walls of the building to crack, compelled the plaintiff to rebuild portions of them, and caused damage to the amount of tens of thousands of dollars to the building and its contents.

Notwithstanding the large amount of this damage, no recovery could have been had for it if the alley had been owned and the sewer had been built therein by a private party, because the plaintiff knew that it was to be constructed and was aware of the danger from it in ample time to have propped and protected his walls, and damage caused by the removal of support to a lot which would not have caused it to settle and crumble in its natural state form a part of that great mass of damages which inflict no legal injury and are commonly styled damna absque injuria. [172 F. 33]

Transportation Company v. Chicago, 99 U.S. 635, 645, 25 L.Ed. 336; Charless v. Rankin, 22 Mo. 566, 571, 66 Am.Dec. 642; Gilmore v. Driscoll, 122 Mass. 199, 23 Am.Rep. 312; McGrath v. City of St. Louis, 215 Mo. 191, 114 S.W. 611, 618.

But counsel for the plaintiff contends that, by virtue of the amendment of the Constitution in 1875, the injury to the building and to its contents was made a legal injury and an actionable damage which the plaintiff was entitled to recover thereunder. The court below was of a different opinion and instructed the jury to return a verdict for the city. [172 F. 34]

The plaintiff's counsel concedes that the damage for which he seeks judgment was not the effect of the negligence of the contractor, and that the city had the right to lay the sewer because the construction and operation of sewers constituted one of the public uses to which the alley was subject by virtue of its original dedication to or acquisition for public use.

It is immaterial whether the title to the land adjoining the plaintiff's lot to the middle line of the alley was in the plaintiff or in the city, because in either case it was subject to the right of the city to use it for sewers, sidewalks, travel, and other urban purposes to which such alleys and streets are devoted, and the plaintiff must recover, if at all, because this use was by the Constitution subjected to the condition that the city should pay the damage to the building and the contents which was caused by the laying of the sewer. Nor is it material whether the sewer was constructed by an independent contractor or by an agent of the city, because in either case the sewer was laid by virtue of the lawful exercise of the power of the state delegated to the city to damage private property for public use, the damage was not the effect of negligence in constructing the sewer, and the Constitution conditions the exercise of this power with the liability of the delegate that exerts it to pay just compensation therefor.

The question therefore is directly presented whether or not damage inflicted upon a building and its contents, by the laying without negligence by a city of a sewer in an alley or in a street adjoining it which would not have injured the lot on which it stood in its natural state, is a legal injury recoverable by virtue of section 21 of article 2 of the Constitution of the state of Missouri, as it was amended in 1875.

Amendments to other Constitutions similar to that made in that year by the state of Missouri were introduced into the Constitutions of many states at about that time, and numerous and inconsistent opinions relative to the character and extent of the damages that may be recovered thereunder have been rendered in various jurisdictions. Chicago v. Taylor, 125 U.S. 161, 169, 8 Sup.Ct. 820, 31 L.Ed. 638; United States v. Alexander, 148 U.S. 186, 13 Sup.Ct. 529, 37 L.Ed. 415; City of Chicago v. Le Moyne, 56 C.C.A. 278, 119 F. 662; Parker v. Boston & Maine R.R. co., 3 Cush. (Mass.) 107, 114, 50 Am.Dec. 709; Reardon v. San Francisco, 66 Cal. 492, 6 P. 317, 56 Am.Rep. 109; Brown v. City of Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L.R.A. 161; City of Vicksburg v. Herman, 72 Miss. 211, 215, 16 So. 434; City of Henderson v. McClain, 102 Ky. 402, 43 S.W. 700, 39 L.R.A. 349; Rigney v. City of Chicago, 102 Ill. 64; City of Elgin v. Eaton, 83 Ill. 535, 25 Am.Rep. 412; City of Pekin v. Brereton, 67 Ill. 477, 16 Am.Rep. 629; City of Chicago v. Jackson, 196 Ill. 496, 63 N.E. 1013, 1135; City of Quincy v. Jones, 76 Ill. 231, 244, 20 Am.Rep. 243; Pennsylvania R. Co. v. Lippincott, 116 Pa. 472, 483, 9 A. 871, 2 Am.St.Rep. 618; Pennsylvania R. Co. v. Marchant, 119 Pa. 541, 544, 13 A. 690, 4 Am.St.Rep. 659; Railway Company v. Meadows, 73 Tex. 32, 35, 11 S.W. 145, 3 L.R.A. 565; Borough of New Brighton v. United Presbyterian Church, 96 Pa. 331, 339; Dickerman v. City of Duluth, 88 Minn. 288, 293, 92 N.W. 1119.

The Supreme Courts of Pennsylvania and Nebraska have decided [172 F. 35] that like amendments to the Constitutions of...