McGrew v. Granite Bituminous Paving Co.

• Decision Date: 12 February 1913
• Citation: 155 S.W. 411,247 Mo. 549
• Parties: JACKSON McGREW v. GRANITE BITUMINOUS PAVING COMPANY, Appellant
• Court: Missouri Supreme Court

155 S.W. 411

247 Mo. 549

JACKSON McGREW v. GRANITE BITUMINOUS PAVING COMPANY, Appellant

Supreme Court of Missouri, First Division

February 12, 1913

Appeal from Randolph Circuit Court. -- Hon. Nick M. Bradley, Special Judge.

Reversed and remanded (with directions).

Sturdevant & Sturdevant and James A. Cooley for appellant.

(1) A contractor acting under a valid proceeding of the municipal authorities providing for a street improvement, is not liable to an abutting property-owner for consequential damages to his property resulting from bringing the street to the grade authorized by such proceeding; and, although the property-owner affected may be entitled to damages caused by such improvement under the clause of the Constitution fixing the liability of cities for "damaging property for public use," nevertheless such liability does not fall upon the contractor, but is that of the city alone. Keith v. Bingham, 100 Mo. 300; Springfield v. Baker, 56 Mo.App. 637; Hickman v. Kansas City, 120 Mo. 116; Werth v. Springfield, 22 Mo.App. 12; Clemens v Ins. Co., 184 Mo. 46. (2) Under section 21 of article 2 of the Constitution, providing for the liability of cities where private property is damaged for public use (prior to which there was no such liability, 107 Mo. 83), damage may be assessed and paid as provided by law, either before or after the improvement is made; the owner also having his remedy against the city in a common law action for damages; but a failure on the part of the city to assess and pay such damages before the improvement is made will not make the contractor, acting for the city under valid proceedings liable for such damages. And it is only when such improvement "disturbs his property or divests him of his proprietary right therein" that he is entitled to have his damages assessed and paid before the improvement is made. Clemens v. Ins. Co., 184 Mo. 46. (3) A right created by the Constitution cannot be enlarged by legislation, and the remedy provided by statute for the enforcement of same is limited in application, strictly, to the right so created. Vanderburgh v. Minneapolis, 98 Minn. 329; Cooley Const. Lim. (7 Ed.), p. 99. (4) The jurisdiction of the city over its streets and its power to improve them does not depend and is not conditioned upon a prior assessment and payment of consequential damages that may result to abutting property from the making of the improvement. Jurisdiction over and control of streets is given by Sec. 1495, R.S. 1889; Sec. 5858, R.S. 1899; Sec. 9254, R.S. 1909. Wheeler v. Poplar Bluff, 149 Mo. 36. (5) Consequential damages do not have to be assessed and paid prior to the doing of the work. Clemens v. Ins. Co., 184 Mo. 46; Haskell v. Denver T. Co., 23 Colo. 60; Vanderburgh v. Minneapolis, 98 Minn. 329; Selden v. Little Falls, 102 Minn. 358; Lorie v. Railroad Co., 32 F. 270; 15 Cyc. 781; Ins. Co. v. Heiss, 141 Ill. 35; Ligare v. Railroad, 160 Ill. 530; Manigault v. Springs, 199 U.S. 485. A number of authorities, from other States, cited by respondents are based upon constitutional provisions differing from ours in the respect that such constitutions specifically provide that the taking and damaging shall be "first paid." See following constitutions: Washington, sec. 16, art. 1; North Dakota, sec. 14, art. 1; Georgia, sec. 3, art. 1; South Dakota, sec. 13, art. 6; California, sec. 14, art. 1.

Campbell & Ellison, Higbee & Mills, G. C. Weatherby and A. Doneghy for respondent.

(1) The provisions of section 21, article 2 of the Constitution are to be liberally construed for the protection of the property-owner. Lewis Em. Domain (2 Ed.), sec. 232a; City v. Straight, 20 Colo. 13; Schaller v. Omaha, 23 Neb. 325; Omaha v. Kramer, 25 Neb. 492; Boyd v. U.S. 116 U.S. 616; Searle v. Lead, 10 S.D. 312; Harmon v. Omaha, 17 Neb. 548. (2) The words in question were intended to enlarge the right to compensation. Lewis Em. Domain (2 Ed.), sec. 232; Transportation Co. v. Chicago, 99 U.S. 642. (3) The words "injured, damaged or destroyed," were not used in vain and without meaning. Montgomery v. Townsend, 80 Ala. 489; Railroad v. Williamson, 45 Ark. 429; Reardon v. San Francisco, 66 Cal. 492; Denver v. Bayer, 7 Colo. 113; Rigney v. Chicago, 102 Ill. 64; Gottschalk v. Railroad, 14 Neb. 550; Omaha Co. v. Strunden, 22 Neb. 343; Johnson v. Parkersburg, 16 W.Va. 402; City v. Madox, 89 Ala. 181; Buffalo v. Straight, 20 Col. 13; City of Vicksburg v. Herman, 72 Miss. 211; Vandevere v. Kansas City, 107 Mo. 83; County v. Brower, 117 Pa. St. 647; Railroad v. Hall, 78 Tex. 169; Brown v. Seattle, 5 Wash. 35; Chicago v. Taylor, 125 U.S. 161. (4) Consequential damages for change of grade of street were intended by the Constitution to be first paid before the property can be disturbed or interfered with. Searle v. Lead, 10 S.D. 312; Reardon v. San Francisco, 66 Cal. 492; City v. Green, 67 Ga. 386; Moore v. City, 70 Ga. 611; Harmon v. Omaha, 17 Neb. 548; Rigney v. Chicago, 102 Ill. 64; Railroad v. Ayers, 106 Ill. 518; City v. Pollock, 141 Ill. 346; McElroy v. Kansas City, 21 F. 259; Brown v. Seattle, 5 Wash. 35; Chicago v. Taylor, 125 U.S. 161; Brighton v. Church, 96 Pa. 331; Werth v. Springfield, 78 Mo. 107; Householder v. Kansas City, 83 Mo. 488; Davis v. Railroad, 119 Mo. 180; Hickman v. Kansas City, 120 Mo. 110; Smith v. St. Joseph, 122 Mo. 643; Galveston v. Fuller, 63 Tex. 467. (5) The ascertainment and payment of damages for a change of street is a condition precedent to the right of the city to exercise the power. Searle v. Lead, 10 S.D. 312; Smith v. Sedalia, 152 Mo. 302. (6) Unless restricted by the Federal or State Constitutions, the power of the Legislature to make any law that it sees fit is transcendent, as great as that of the British Parliament. Cass County v. Jack, 49 Mo. 196; State v. Wear, 145 Mo. 162; Ex parte Roberts, 166 Mo. 207; Cooley Con. Lim. (5 Ed.), sec. 87; Morrow v. Kansas City, 186 Mo. 675; Ex parte Berger, 193 Mo. 16. The provisions of Sec. 5861, R.S. 1899, are wise, and, if followed, will prevent a multiplicity of damage suits and will accelerate public improvement. Donovan v. Allert, 91 N.W. 441. "The right of eminent domain belongs to the State. The exercise of such is a matter entirely under the control of the Legislature, subject to such restrictions as are found in the Constitution. The necessity, the occasion, time, manner of its exercise are wholly legislative questions, with the exceptions just stated." Loomis v. Hartz, 131 N.W. 86; Musick v. Railroad, 114 Mo. 315; Railroad v. Evans, 85 Mo. 333. (7) The provisions of Sec. 5861, R.S. 1899, as to when and how the damages shall be ascertained, go to the remedy, and not to the right to the compensation guaranteed by the Constitution. Lewis Em. Domain (2 Ed.), sec. 245; Hickman v. Kansas City, 120 Mo. 118. (8) The Legislature may change the remedy whenever it sees proper so long as it does not impair the right given the property-owner by the Constitution. Lewis Em. Domain, sec. 245; Bornefelt v. Railroad, 180 Mo. 554; Sutherland Stat. Con., sec. 554; Cooley Con. Lim. (5 Ed.), sec. 443; Bronson v. Kinzie, 1 How. 312, 14 Curtis (U.S.) 629; 20 Am. & Eng. Ency. Law (1 Ed.), 871; Springfield v. Railroad, 67 Ill. 99; Chouteau v. Railroad, 122 Mo. 375; Southern Co. v. Stone, 174 Mo. 455. (9) If the Legislature has not made sufficient provision for the payment of consequential damages for a change of grade then it did not provide due process of law and could not confer the power. Chamberlain v. Elizabethtown, 41 N.J.Eq. 43; Chaffee's Appeal, 56 Mich. 244; In re Manderson, 51 F. 501; Lewis Em. Domain (2 Ed.), secs. 341, 365; Elliott Roads and Streets (2 Ed.), sec. 197; Smith v. Sedalia, 152 Mo. 302. (10) This court has consistently held in construing section 21, article 2, Constitution, that consequential as well as actual damages must be first paid. St. Louis v. Hill, 116 Mo. 527; McMurray v. St. Louis, 138 Mo. 616; Leslie R. E. Co. v. St. Louis, 169 Mo. 227; Hickman v. Kansas City, 120 Mo. 110; Drainage Dist. v. Richardson, 237 Mo. 77; Smith v. Sedalia, 152 Mo. 302; Chapman v. Railroad, 144 S.W. 471.

WOODSON, J. Valliant, C. J., absent; Graves, J., concurs in an opinion to be filed.

OPINION

WOODSON, 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, Missouri, 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 defendant with force of arms wilfully and wrongfully entered upon said Jefferson street and constructed and erected a permanent embankment of stone, concrete and other durable materials twelve inches high and twenty-four 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 twelve 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 seven hundred and fifty dollars, 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...