Justice v. Town of Lancaster
| Decision Date | 08 February 1886 |
| Citation | 20 Mo.App. 559 |
| Parties | H. S. JUSTICE, Appellant, v. TOWN OF LANCASTER, Respondent. |
| Court | Kansas Court of Appeals |
APPEAL from Schuyler Circuit Court, HON. ANDREW ELLISON, Judge.
Affirmed.
The case is stated in the opinion.
HIGBEE & RALEY and C. C. FOGLE, for the appellant.
I. The demurrer should have been sustained. This case falls within the provisions of art. II., sect. 21, constitution of Mo. (1875). The party injured may resort to any common law action, which will afford him adequate and appropriate means of redress. Householder v. Kansas City, 83 Mo. 488.
II. The count demurred to alleges " tat the grade lines of the street had never been established by ordinance." This is immaterial. Harman v. Omaha, 21 Cent. L. J. 129.
III. Where embankments are made above the grade of the street both the city and the railroad company are liable. Tate v. R. R., 64 Mo. 158; Cross v. R. R., 77 Mo 322. The city is primarily liable. Dill. Mun. Corp. (3 Ed.) sect. 1037, note 1.
IV. Defendant is liable in this case at common law. This is not a case of change of grade. Defendant negligently permitted the railroad company to make a fifteen foot cut across the street. Instead of compelling it to conform its track to the grade of the street, defendant required it to erect a bridge with certain approaches. This was negligence at common law. The ordinance would shield the railroad company from any liability.
V. The act of 1885 (sess. acts, 1885, March 28) is subsequent to the trial of this cause in the circuit court as in the Householder case, supra.
No brief appears on file for the respondent.
This is an action to recover damages against the defendant, a municipal corporation, for injury done to plaintiff's adjoining property by raising the grade of the street. The petition charges that the work was done by defendant's permission and direction.
The answer, after tendering the general issue, alleged that a certain railroad, under charters ante-dating the adoption of the state constitution of 1875, had built its road through the defendant town, and having a right so to do, where it intersected the street in question, it made a cut of fifteen feet deep, thus necessitating the making of a grade-crossing or the erection of a bridge over this point. That in 1883 the defendant, through its counsel, adopted an ordinance calling on said railroad corporation to erect a bridge at this crossing, with proper approaches, as required by the charter of the railroad. The answer alleges that the bridge was accordingly built by the railroad company, and the embankment complained of was thus made. It is also alleged that no grade of this street had hitherto been made by the town.
The answer further pleaded that prior to the erection of this bridge, or the adoption of the ordinance, the plaintiff applied to members of the city council and urged them to have said bridge built, without regard to its height, well knowing at the time that the bridge would necessitate the building of such approaches, and that it was plaintiff's influence exerted on the town council, more than anything else, which brought about the ordinance, etc.
To this answer plaintiff interposed a general demurrer, which, being overruled, he declined to plead further, and let judgment go on the answer. From this judgment he has appealed.
I. If the only defence interposed by the answer went to the question, was defendant exempted from liability by reason of the acts of the railroad company and its ordinances, we are not prepared to say that the demurrer was not well taken. But the demurrer went to the whole answer. If, therefore, any matter pleaded tendered any defence, in whole or in part, to the action, the demurrer was properly overruled.
I am of opinion that the facts pleaded, touching the conduct of plaintiff in soliciting the adoption of the ordinance, and the erection of the bridge with...
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