McGrew v. Granite Bituminous Paving Co.

• Decision Date: 31 December 1912
• Citation: 155 S.W. 411,247 Mo. 549
• Parties: McGREW v. GRANITE BITUMINOUS PAVING CO.
• Court: Missouri Supreme Court

155 S.W. 411

247 Mo. 549

McGREW v. GRANITE BITUMINOUS PAVING CO.

Supreme Court of Missouri.

December 31, 1912.

Motion for Rehearing Denied February 12, 1913.

1. EMINENT DOMAIN (§ 75)—DAMAGING PROPERTY—COMPENSATION —ADVANCE PAYMENT.

Const. 1875, art. 2, § 21, providing that private property shall not be damaged for public use without just compensation and that, until such compensation be paid into court for

the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested, only contemplates damages arising from the taking of private property for public use, including damages for the property actually taken and damages to the remainder by reason of the taking, and does not apply to require advance payment of the damages accruing to an abutting lot owner incidental to the changing of the grade of a street.

2. CONSTITUTIONAL LAW (§ 32) — SELF-EXECUTING CONSTITUTIONAL PROVISIONS.

Const. 1875, art. 2, § 21, prohibiting private property from being damaged for public use without just compensation and providing that the property shall not be disturbed until compensation be paid to the owner, is self-enforcing, though the Legislature has enacted no law providing a mode for ascertaining the compensation; one injured being entitled to resort to an adequate common-law action.

3. EMINENT DOMAIN (§ 75)—COMPENSATION —GRADING STREETS—VALIDITY OF STATUTE.

Rev. St. 1899, § 5861, making it unlawful to change the grade of a street without making compensation to owners damaged therefrom to be determined as to damages as provided in the article, does not violate Const. 1875, art. 2, § 21, providing that property damaged for public use shall not be disturbed until compensation be paid to the owner, though such article does not require damages to be paid in advance to the doing of the work of this character.

4. STATUTES (§ 4)—ENACTMENT—POWERS OF LEGISLATURE.

The Legislature has unlimited power to enact statutes, except as it is limited by the state and federal Constitutions, and, in absence of such limitations, all statutes are valid, however unreasonable or oppressive.

5. EMINENT DOMAIN (§ 75)—COMPENSATION —CHANGE OF GRADE OF STREET.

The proceedings for the change of grade of a street are not illegal or wrongful because compensation for damages to abutting owners is not paid in advance as required by Rev. St. 1899, § 5861, so that the contractor is not liable in damages for making such changes pursuant to ordinance without advance payment having been made.

In Banc. Appeal from Circuit Court, Randolph County; Nick M. Bradley, Special Judge.

Action by Jackson McGrew against the Granite Bituminous Paving Company. From a judgment for plaintiff, defendant appealed to the Kansas City Court of Appeals and the case was transferred to the Supreme Court. Reversed and remanded.

Sturdevant & Sturdevant, of St. Louis, and J. A. Cooley, of Kirksville, for appellant. Campbell & Ellison, of Kirksville, Higbee & Mills, of Lancaster, and G. C. Weatherby and A. Doneghy, both of Kirksville, for respondent.

WOODSON, P. J.

This case reaches us upon an order of transfer made by the Kansas City Court of Appeals, owing to a constitutional question lodged in the record. Plaintiff owns a certain described lot in the city of Kirksville, Mo., which said lot abuts on Jefferson street in said city for a distance of 108 feet. The lot is on the south side of said street. After properly charging the above matters, plaintiff's petition then thus proceeds: "Plaintiff further states that the defendant, Granite Bituminous Paving Company, at all times hereinafter mentioned was, and still is, a corporation organized and existing under the laws of West Virginia; that on or about the ____ day of September, 1906, the defendants, with force of arms, willfully and wrongfully entered upon said Jefferson street and constructed and erected a permanent embankment of stone, concrete, and other durable materials 12 inches high and 24 feet wide in the center of said Jefferson street, along and in front of plaintiff's said lands, whereby the grade of said street was and is permanently raised 12 inches along the entire front of plaintiff's said premises above the natural surface thereof, whereby plaintiff's said premises have been damaged, and plaintiff has sustained damages in the sum of $750, for which he asks judgment."

Defendant is the contractor which did the work in improving Jefferson street in front of plaintiff's property. By its answer the defendant specially pleads certain ordinances, resolutions, and proceedings of the city of Kirksville relating to the establishment of a grade for Jefferson street, and for the improvement of such street, and also relating to the contract with defendant and the approval and acceptance of the work, and then such answer thus proceeds: "Defendant further alleges that all the acts and things done by it upon the street in front of the property described in plaintiff's petition were done according to, in pursuance of, and under the authority of, the ordinances, resolution, and proceedings of the said city of Kirksville and its duly constituted authorities, and in no other manner, and that the said city of Kirksville, in the passage of the said ordinances, resolution, and proceedings, acted within the authority conferred upon it by the laws of the state of Missouri; that all acts and things done by defendant upon the said street were done in strict compliance with its contract with said city and to the satisfaction of said city as aforesaid; and that it is not liable to plaintiff in this action for the things complained of in plaintiff's petition. Defendant further alleges that the said plaintiff had full knowledge, actual and constructive, of all the proceedings had on the part of said city and the execution of said contract with the defendant and the doing of said work by the defendant upon said street, all as herein alleged; that during all of said time the plaintiff stood by without complaint or protest and without taking any steps to prevent the said city or the defendant from doing the things herein alleged and acquiesced in, and ratified all the acts and proceedings on the part of the said city and all things done by this defendant, and is therefore estopped to assert the claim set forth in his petition. Defendant further alleges that the ordinances, resolution, and proceedings enacted by the authorities of the said city of Kirksville, as herein alleged, were all duly and legally enacted, and that the same are now, and have been since the dates of their respective enactments as alleged, in full force and effect and remain unrepealed. The defendant, further answering, herein denies all the other allegations in plaintiff's petition contained. Wherefore the defendant, Granite Bituminous Paving Company, having fully answered, asks to be discharged with its costs in this behalf expended."

Reply was a general denial. Trial was had before the court without the intervention of a jury, and judgment rendered for plaintiff in the sum of $300, from which judgment an appeal was granted to the defendant to the Kansas City Court of Appeals, and, upon its motion, the cause was, as above stated, certified to this court. Other material matters of pleading and proof will be noted in the course of the opinion.

1. Under the ordinance establishing the grade of Jefferson street, the street was slightly raised (something like 12 to 18 inches in center of street as claimed by plaintiff) in front of plaintiff's property. This it is charged interfered with ingress and egress, and also tended to keep surface water on the property. The lot sloped to the northeast, and, when it is remembered that the street is north of the lot, the situation is readily grasped. We are first called upon to determine the meaning of section 21 of article 2, Mo. Const. of 1875. This document reads: "That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner, subject to the use for which it is taken." (We have underscored portions calling for our notice.)

Plaintiff contends that his damages should have been assessed and paid to him before the work was done by the city through its contractor, the defendant herein. That for this failure the proceedings were void, and the defendant liable in trespass for such is the nature of this action.

Defendant contends that, whilst the plaintiff can recover from the city his damages, yet the failure to have the same assessed and paid beforehand does not invalidate the proceedings, and, if the proceedings are otherwise regular, the contractor is not liable at all. If property is taken for street purposes, there can be no question about the meaning of this constitutional provision. It has been too often passed upon. If, however, this constitutional provision contemplates the assessment and payment of damages of the kind here involved, prior to entering into the contract for the construction of the work, and prior to doing the work, then the proceedings have been unwarranted and afford no protection to the contractor.

Counsel for the plaintiff thus state their position in the brief: "Again, it has been repeatedly decided in this state that, if a city proceeds to grade a street to the damage of private property without first having ascertained the damages as provided by law, not only it, but all who join in the trespass, are joint trespassers and can be sued jointly or severally." Under this statement, and in support thereof, we are cited...