Kiley v. City of Kansas

• Decision Date: 31 October 1878
• Citation: Kiley v. City of Kansas, 69 Mo. 102 (Mo. 1878)
• Parties: KILEY, Plaintiff in Error, v. THE CITY OF KANSAS.
• Court: Missouri Supreme Court

69 Mo. 102

KILEY, Plaintiff in Error,

v.THE CITY OF KANSAS.

Supreme Court of Missouri.

October Term, 1878.

Error to Jackson Circuit Court.--HON. SAML. L. SAWYER, Judge.

Tichenor & Warner for plaintiff in error.

The city had ample power by its charter to define what should be deemed a nuisance, and to abate and remove the same. Laws 1870, p. 333; and it is liable for a failure to exercise this power. Wood on Nuisances, § 744. If this wall had been standing in the street and had fallen so as to kill one who was in the street, and one just outside of it, could there be a recovery in one case and not in the other? Certainly not. The question would be, were these persons killed because of neglect of duty on part of the city, and not, where were they standing when killed by such neglect of duty. Again, if this wall, situated where it was, had fallen so as to kill one traveling in the street, there could be a recovery, because, under its charter, it had exclusive control and management of its streets, and it was its duty to keep them in a safe condition. Sess. Acts 1870, p. 333; Blake v. City, 40 Mo. 570; Bassett v. City, 53 Mo. 290; Hull v. City, 54 Mo. 598. If by the fall another, also, had been killed, standing just outside of the street, would not the cause of his death have been just the same, to-wit: the neglect of duty on part of the city. See Parker v. Macon, 39 Ga. 725.

J. Brumback for defendant in error.

On the facts stated in the petition the city is not liable because the power to define the wall a nuisance, and to provide for abatement of such nuisance is legislative, governmental and exercisable for the public good. It is not a power to be used by the city as a proprietor, or for private gain or advantage, as if it were a private corporation. Dillon on Munic. Corp., §§ 39, 754; Peck v. Austin, 22 Texas 261; Murtagh v. St. Louis, 44 Mo. 481; Heiler v. Sedalia, 53 Mo. 160; Grant v. Erie, 69 Pa. St. 420; Wheelerv. Cincinnati, 19 Ohio St. 19; Shearman & Redfield on Neg. § 153; Levy v. New York, 1 Sandf. Sup. Ct. 465; Griffin v. New York, 9 N. Y. 459; Lorillard v. Monroe, 11 N. Y. 396; Western College v. Cleveland, 12 Ohio St. 377; Kelley v. Milwaukee, 18 Wis. 84; Goodrich v. Chicago, 20 Ill. 445; Jewett v. New Haven, 38 Conn. 396; Hilsdorf v. St. Louis, 45 Mo. 95; Hill v. Charlotte, 72 N. C. 55; s. c., 21 Am. Rep. 451; Howe v. New Orleans, 12 La. Ann. 481; Kennedy v. New Orleans, 10 La. Ann. 227; Hixon v. Lowell, 13 Gray 61; Jones v. Boston, 104 Mass. 76; Hewison v. New Haven, 34 Conn. 136; Hafford v. New Bedford, 16 Gray 297; Fisher v. Boston, 104 Mass. 93.

The claim to recover is bottomed on the failure of the city to abate an alleged nuisance on the land not owned or controlled by it. What can respondent rightfully do under the charter in such cases? The petition merely discloses that there is an ordinance declaring all buildings or structures, dangerous to the public, nuisances. It does not appear, whether or not, there is any provision contemplating proceedings to obtain a judicial decision, that any particular structure, being on private property, is a nuisance within the ordinance, and directing an abatement after such decision, according to the well known course of law. It is clear that the ordinance would not, without such provisions, be good to warrant abatement by the city. The council cannot exercise judicial power, and by ordinance declare any particular structure, or class of structures, on land of its citizens, a nuisance, and have a summary abatement without more. Whether any structure so situated is a nuisance, is a judicial question, to be decided by some tribunal, on notice to the owner, before he can be bound, or his property affected, or before any one injured for failure to abate can, if ever, claim redress against the city. Yates v. Milwaukee, 10 Wall. 505; Lake View v. Letz, 44 Ill. 82; Dillon Munic. Cor., § 308; Cleveland v. Lenze, 27 Ohio St. 385. A private individual cannot abate a private or public nuisance, except so far as it may be necessary to enable him to enjoy or exercise his own right. If those whose rights are not directly affected by the existence of such a nuisance, abate the same, they are liable in damages to the person suffering therefrom. Brown v. Perkins, 12 Gray 101. This principle prohibited the city from summarily abating the nuisance for the benefit of adjoining private property, and the child thereon. The power given by the charter to abate nuisances summarily, when exerted without judicial proceedings, must be confined to cases where, by common law, a private person may abate a nuisance. In all other cases there must be a judicial finding of the fact of nuisance, to warrant an abatement, which must then be according to the course of law, though summary. The power to define nuisances is simply legislative, and after its exercise the usual forms of law must be observed in laying the ground to abate, and, in abating, at least in the case of nuisances on land not owned by the city, there must be some judgment to abate. No one can have damages for failure of the city to abate summarily, without judicial proceedings, such a nuisance. Such abatement would be illegal. The duty to abate summarily does not arise merely because the city exercised its legislative power to define a nuisance. The duty to institute judicial proceedings to have the wall adjudged a nuisance is not of such character that damages can be recovered for failure to do it. Mrs. Kiley might have instituted such proceedings herself.

NAPTON, J.

As the only question in this case arises on a demurrer to the petition which was sustained, we insert the petition at large:

Plaintiff states that defendant is a municipal corporation, created by the laws of the State of Missouri, and that defendant is, and was, at the time of the hereinafter grievance, a populous city; that, by its charter, defendant is empowered to abate all nuisances within the city, that are dangerous to the public, and that the defendant has the right and authority to define what constitutes a dangerous public nuisance within its limits; that, by chapter 20 of “An ordinance in revision of the ordinances governing the city,” approved October 14th, 1871, it is ordained, among other things, that all buildings and structures in a situation or manner dangerous to the public, are declared to be nuisances, and plaintiff alleges that it is defendant's duty to abate all nuisances, within its limits, of a character dangerous to the public.

Plaintiff says, that at the time of the hereinafter mentioned grievance, she was, and now is, a widow, her husband being dead, and that at said time she resided in the town of Harlem, Clay county, Missouri, and that her daughter, Maggie Kiley, whose death occurred as hereinafter stated, lived with plaintiff, and that her said daughter, Maggie, was a minor, of the age of fourteen years; that from and after the 19th day of December, 1872, and continuously from that date until the 9th day of February, 1873, defendant negligently and carelessly permitted and suffered an insecure and dangerous wall, the same being about forty feet high, the remains of a brick building, to stand and remain on part of lot No. 86, in Swope's addition to said city, being at or near the corner of 12th street and Grand Avenue, streets of defendant, and the same being a locality much frequented by the public; that said brick wall was...