Mattingly v. St. Louis County, 39364
| Decision Date | 23 May 1978 |
| Docket Number | No. 39364,39364 |
| Citation | 569 S.W.2d 251 |
| Parties | Cornelius C. MATTINGLY et ux., Appellants, v. ST. LOUIS COUNTY, Missouri, Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Sleater & Sleater, W. W. Sleater, Clayton, for appellants.
Thomas W. Wehrle, County Counseler, Dennis K. Morgan, Associate County Counseler, Clayton, for respondent.
Plaintiffs' three-count petition, sounding both in tort and inverse condemnation, was dismissed for failure to state a claim and plaintiffs have appealed. We find the petition insufficient in tort, but sufficient as to inverse condemnation. Accordingly, we reverse and remand.
Common to each count are plaintiffs' allegations they own or have prescriptive rights in a described tract of land, that defendant in its proprietary capacity constructed a public roadway and in doing so excavated soil "within the cone of support of plaintiff's property" thereby impairing its lateral support, all to plaintiffs' damage. Those were the basic allegations of Count I whereby plaintiff sought $20,000 damages.
By Count II plaintiffs further alleged defendant was negligent in specified particulars by removing plaintiffs' lateral support, and sought $20,000 damages.
By Count III plaintiffs adopted Counts I and II, asserted their prescriptive rights to the realty and sought $20,000 damages.
We look first to plaintiffs' Count II, charging negligence. Defendant St. Louis County, being a political subdivision of the State, is immune from tort liability. Payne v. County of Jackson, 484 S.W.2d 483 (1, 2) (Mo.1972); Wood v. County of Jackson, 463 S.W.2d 834 (1, 2) (Mo.1971). In opposition to this, plaintiffs cite Jones v. State Highway Commission, 557 S.W.2d 225 (Mo.1977). That case, abrogating sovereign immunity prospectively from August 15, 1978, is patently inapplicable to plaintiffs' prior claim of negligence. The trial court properly dismissed Count II.
Viewing Count I liberally, as we must on a motion to dismiss, we find it does state a cause of action for inverse condemnation. In Page v. Metropolitan Sewer District, 377 S.W.2d 348 (11-13) (Mo.1964), the court held: ". . . considering the facts alleged in the petition, which indicate that appellants' property was taken (or damaged) and that such taking or damage was inflicted by the state, for a public use, it is not amiss to...
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...a plaintiff must allege his property was taken or damaged by the state for public use without just compensation. Mattingly v. St. Louis County, 569 S.W.2d 251, 252 (Mo.App.1978). The landowner does not have to show an actual physical taking of property, but must plead and prove "an invasion......
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