Lange v. City of Jackson

• Decision Date: 15 April 1969
• Docket Number: No. 33157,33157
• Citation: 440 S.W.2d 758
• Parties: Richard LANGE and Fern Lange, Plaintiffs-Respondents, v. CITY OF JACKSON, Missouri, a Municipal Corporation, and Loos & Hoffmeister Construction Company, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 758

440 S.W.2d 758

Richard LANGE and Fern Lange, Plaintiffs-Respondents, v. CITY OF JACKSON, Missouri, a Municipal Corporation, and Loos & Hoffmeister Construction Company, Defendants-Appellants.

No. 33157.

St. Louis Court of Appeals, Missouri.

April 15, 1969.

Buerkle & Lowes, Kenneth L. Waldron, Paul A. Mueller, Jr., Jackson, for defendants-appellants.

Limbaugh, Limbaugh & Russell, Cape Girardeau, for plaintiffs-respondents.

PER CURIAM.

This is an action against the City of Jackson and Loos and Hoffmeister Construction Company to recover damages for injury to their property due to the change of grade of Corinne Street from its natural grade to a grade established by ordinance. The case was tried to the court, a jury having been waived by the parties. The trial resulted in a finding and judgment for the plaintiffs in the sum of $2,500.00. Defendants have appealed.

The case having been tried by the court, our review under Civil Rule 73.01(d), V.A.M.R. is de novo on both the facts and the law, limited, however, to the matters urged on appeal by appellants. DeBow v. Higgins, Mo., 425 S.W.2d 135.

Plaintiffs are husband and wife, and are the owners of a house and lot at the southeast corner of the intersection of Blanche and Corinne Streets in the City of Jackson. Blanche Street is paved with concrete at its natural grade. It runs north and south. Corinne Street runs east and west along the north edge of plaintiffs' lot. Plaintiffs' house faces on Blanche Street. Their lot is 60 feet wide and is level with Blanche Street. The house is 32 feet wide. Corinne slopes from west to east beginning 10 or 12 feet from its intersection with Blanche. The width of the right-of-way of Corinne is 50 feet.

Plaintiffs purchased their property in July, 1953. The house is in reasonably good condition. It has two bedrooms, a living room with hardwood flooring, a tiled kitchen and a bathroom. There are storm windows throughout the house. The front door of the house is about 9 inches above the front yard. At a point about one-third of the way from the front to the rear of the house the side yard begins to slope considerably downward so that the basement door at the rear of the house is approximately at ground level. At the rear of the house is a 24 30 carport. It is 14 feet from the eastern edge of the Corinne right-of-way to the carport. At the time plaintiffs moved into their property there was a driveway from the carport to Corinne. There was gravel on Corinne from Blanche Street to a point beyond plaintiffs' driveway. It was placed on the natural grade and was several feet from the plaintiffs' property line. It was 4 or 5 inches higher than the right-of-way adjacent to plaintiffs' lot.

Plaintiff, Mr. Lange, testified that the natural surface of Corinne at the point where the driveway entered was a 'foot or better' higher than the level of the carport. Later he testified it was 'Between a foot to a foot and a half' higher. He further stated he was able to use the driveway to the carport, and experienced no trouble using it in bad weather. He stored there an automobile, a pickup truck, and occasionally a tractor.

On July 21, 1966, the city by Ordinance No. 1546 declared it necessary to improve Corinne Street by bringing the same to grade and paving the same with Portland cement 33 feet wide with integral curb and gutters. It was also provided that the work should be done in accordance with the plans and specifications on file with the city clerk. Thereafter the city contracted with Loos & Hoffmeister Construction Company to perform the work in accordance with said plans and specifications. In performing the work under the contract Corinne was brought to the grade established by said plans and specifications. The work was completed November 1, 1967.

The fill necessary to bring the street to the established grade embraced the whole right-of-way. Thomas Meyer, plaintiffs' witness, testified that the level of the right-of-way at the driveway, after the work was completed, was 6 to 6 1/2 feet above the level of the entrance to the carport. Plaintiff Richard Lange estimated the elevation as being between 4 and 5 feet. Defendants' witness C. R. Trotter testified on direct examination that the fill opposite the driveway ranged from 2 to 3 1/2 feet above the natural surface. On cross examination he stated there was an increase of approximately 4 feet. Mr. Trotter was a consulting engineer on the job and had prepared the plans and specifications under which the work was done.

Thomas L. Meyer testified that the fill alongside plaintiffs' property had caused damage in that the carport could not be used as it had been previously. He further testified that it would be useless to build the driveway up to the present elevation for the reason it would result in about a 45 degree angle between the floor of the carport and the street. He stated it would be difficult to use during bad weather, and that under normal conditions there would be the problem of mufflers and bumpers dragging in coming off the street and in entering the carport. He further testified, '* * * to bring the drive into the carport at street level would constitute a great expense as far as building a foundation and filling it and rebuilding, of course, the carport, changing the total elevation of the back of the house, you know, where the carport will be and it would also necessitate quite a bit of fill to bring the yard back to a decent appearing condition.' The witness estimated that the cost of the change to put the driveway and carport in a usable condition would be in the area of $3,200.00. He testified that in his opinion the difference between the market value of the property prior to the change of grade, and its market value immediately after said change of grade was $3,200.00. On cross examination he testified that before the change of grade plaintiffs' property had a market value of $9,950.00, and that the top value after the street was raised and paved was $7,950.00.

Woodson Niswonger, who had been in the real estate business for many years in Cape Girardeau County, testified for plaintiffs. He testified that the cost to repair the damage to plaintiffs' property due to the elevation of Corinne Street would be $3,240.00. He stated that the market value of the property prior to the street improvement was in the area of $10,000.00 to $10,500.00. On redirect examination he testified the present market value of said property was $7,500.00.

Plaintiff Richard Lange testified that before the fill was made the property was worth about $10,000.00, and after the change of grade it was worth about $7,000.00. Mrs. Lange gave like testimony.

Goldie Crosnoe, a general contractor, testified that he had examined plaintiffs' property to determine whether a driveway could be built from Corinne to the carport. He stated that his conclusion was that it would be a waste of money; that it was not feasible to put in such a driveway that would be satisfactory to the owners; that the steepness of the grade and the distance between the pavement and the carport would create the problem of the rear end of a car dragging coming off the street and entering the carport; and, that it would be hazardous for use during periods of snow and ice. The witness also gave testimony to the effect that putting the drive at another location would not solve the problem. He also testified he had considered the cost of filling the backyard and raising the level of the carport by tearing it down and rebuilding it. He stated that the cost factor would be prohibitive.

On cross examination Mr. Crosnoe testified it was his general impression that there was not room to build a new carport at the side of the house. He also stated he did not notice if there was sufficient room to build one where, in using it, the cars would be parked parallel to...