Markowitz v. Kansas City

• Decision Date: 04 December 1894
• Citation: 28 S.W. 642,125 Mo. 485
• Parties: MARKOWITZ v. KANSAS CITY.
• Court: Missouri Supreme Court

28 S.W. 642

125 Mo. 485

MARKOWITZ v. KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

December 4, 1894.

EMINENT DOMAIN — CHANGE OF STREET GRADE — ACTION FOR DAMAGES — EVIDENCE — INSTRUCTIONS.

1. Act March 26, 1885, amended by Act March 31, 1887, providing for proceedings to ascertain damages for city improvements, is not a substitute for the remedies to which the owner is entitled under Const. art. 2, § 21, providing that compensation shall be had for property taken or damaged for public use.

2. In an action for damages caused by grading a street adjacent to plaintiff's lot, evidence of what lots in the same locality sold for at that time is admissible to show the value of plaintiff's lot prior to grading the street.

3. Evidence of the cost of the material used in constructing the house erected thereon is admissible to show the value of the property.

4. An instruction that the measure of damages will be the difference in value of the premises immediately before and immediately after the grading is corrected by a subsequent instruction that the measure of damages is the difference in market value of the property after the grading, and caused solely by the grading.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by Louis I. Markowitz against Kansas City to recover damages resulting from grading a street adjacent to plaintiff's property. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

F. F. Rozzelle and C. S. Palmer, for appellant. E. H. Stiles and E. L. Noyes, for respondent.

BURGESS, J.

This is an action for damages to plaintiff's property, alleged to have been caused by defendant by grading Jefferson street, in Kansas City, from Twenty-Seventh street to the southern limits of said city, under an ordinance approved May 12, 1888. The work was done under a contract dated July 12, 1888. On April 19, 1889, defendant passed an ordinance defining the benefit district within which property should be charged with the payment of damages occasioned by such grading. Plaintiff's property was in said district. Prior to the institution of this suit, plaintiff had brought a suit against defendant for the same cause of action, which he subsequently dismissed; but no point is made upon that fact in this court. Defendant in its answer alleged that, previous to the time of the grading, plaintiff had given a deed of trust on the property, which had been foreclosed, and the property sold to a third person. A demurrer was filed by plaintiff, and sustained to all of the allegations in defendant's answer except the general denial. The trial resulted in a verdict and judgment for plaintiff in the sum of $1,100, from which defendant appealed.

Defendant's first contention is that as before this suit was brought, and after the grading had been completed, it had, in pursuance of the provisions of an act of the general assembly entitled "An act to provide for the ascertainment of and payment for damages done by municipal corporations to private property for public use, as directed by section 21, article 2, of the state constitution," approved March 26, 1885, and an act amendatory thereof, approved March 31, 1887 (Sess. Acts 1887, p. 37), defendant passed an ordinance prescribing the district in which property should be deemed especially benefited by the grading of said street, and prescribing a mode for the assessment and the collection of damages sustained by property owners by reason thereof, the mode thus prescribed was exclusive, and this action is not maintainable. In Hickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, which was an action for damages to plaintiff's property, occasioned by a change of the grade of a street in said city by virtue of an ordinance passed in pursuance of said acts of the legislature, it was held, contrary to defendant's contention, that, the right of action being conferred by section 21, art. 2, Const., which is self-enacting, the remedy prescribed by the ordinance was not exclusive. Brace, J., speaking for the court, said: "The rule is that if a statute gives a remedy in the affirmative, without containing any express or implied negative, for a matter which was actionable at common law, this does not take away the common-law remedy, but the party may...