Mohesky v. City of Washington
| Decision Date | 17 September 1968 |
| Docket Number | No. 33059,33059 |
| Parties | Harvey MOHESKY and Theresa Mohesky, his wife, Plaintiffs-Appellants, v. CITY OF WASHINGTON and Van Dennis, City Engineer, Defendants, City of Washington, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Thomas J. Briegel, Union, for plaintiffs-appellants.
Leo A. Politte and Emil L. Poertner, Washington, for defendant-respondent.
JAMES H. KEET, Jr., Special Judge.
Plaintiffs' petition prays $5,000.00 damages against the City of Washington and its city engineer because of their raising the grade of east-west Sixth Street, which in turn allegedly caused increased water flowage on their land and flooding of their basement in rainy periods and rendered part of the land inaccessible from the street, all resulting in a decrease in the property's value. Defendants' answer denies that any damage was caused and alleges, among other defenses not pertinent on this appeal, that the grade was raised in accordance with an ordinance establishing the grade in 1948.
The case was tried to a jury. Defendants' joint motion for a directed verdict at the close of all of the evidence was overruled. Verdict was in favor of plaintiffs and against the City for $3,500.00 but against plaintiffs and in favor of the city engineer. The trial court granted a new trial on the grounds of error in plaintiffs' verdict-directing Instruction No. 2 and the burden of proof Instruction No. 4 and excessiveness of the verdict. Plaintiffs appeal from the trial court's action in granting the new trial.
The City first established the grade of Sixth Street on April 5, 1948, by a duly enacted ordinance which was filed as a public record in the file for grading ordinances in the City Clerk's office. In 1955 a home with a basement garage was built on the lot at the southwest corner of Sixth and Henry Streets. On December 13, 1963, plaintiffs who had no prior interest in the property, brought the property, which fronts 65 feet on Henry Street and runs 180 feet along Sixth Street, in a new residential part of the city. Plaintiffs later put in some sidewalks and a few shrubs. The natural surface (oiled dirt with light rock stabilization) of Sixth Street was level and ran with the contour of plaintiffs' land, which sloped downward from both streets, the drainage being from northeast to southwest. The west 90 feet of the lot sloped downward away from Sixth Street and was about a foot lower than the street, which had a slope in it. The driveway had a retaining wall beginning at the south edge of Sixth Street west of the house and running to the garage. During plaintiffs' ownership, the property had no drainage problem except in an insignificant way at the west end of the lot because of a storm sewer.
In late 1965 the City raised and leveled the grade of Sixth Street from its natural surface in a workmanlike manner and not in excess of the established grade. At trial time, the east 90 feet of plaintiffs' land was about level with the new street grade but beginning at the west 90 feet of the lot was about one foot below the new street grade and this grade differential increased to 4 feet at the west boundary of the lot. After and because of the change of grade, according to plaintiffs' evidence, drainage water crossed the yard at the west end of the house, coursed into the garage door, and lodged debris and rocks on the west half of plaintiffs' property, and plaintiffs had to close the garage to keep the water out and could not use the garage.
Plaintiffs assert that Instructions 2 and 4 were proper and that the verdict was not excessive. We will not deal with the correctness of these instructions. We affirm the trial court's action in granting the City a new trial on the ground that the verdict was excessive.
The trial court's ruling that the verdict was excessive was a holding that the verdict was against the weight of the evidence. Greco v. Hendricks, Mo., 327 S.W.2d 241, 245. Such ruling is peculiarly within the sound discretion of the trial court, and its action will not be disturbed unless the trial court has manifestly abused its discretion, as where its action is not reasonably and substantially supported by the evidence viewed in the light most favorable to the court's ruling. Greco, supra, l.c. 245; State ex rel. SHC v. Vaught, Mo., 400 S.W.2d 153, 155; Union Electric Company of Missouri v. McNulty, Mo., 344 S.W.2d 37, 39.
The appellant has the burden of establishing error in the ruling. Union Electric Company of Missouri, supra, l.c. 39. The record does not disclose any error. Substantial evidence reasonably supported trial court's action. The City's expert witness, Boland, Testified that the change of grade caused very little, if any depreciation to the lot and not over...
To continue reading
Request your trial
-
Plas-Chem Corp. v. Solmica, Inc., PLAS-CHEM
... ... v. Meadows, Mo.App., 360 S.W.2d 236, 240; Coonis and Fortner v. City of Springfield, Mo., 319 S.W.2d 523, 528(7); Spruce Co. v. Mays, 333 Mo. 582, 62 S.W.2d 824, ... Wunning, Mo.App., 417 S.W.2d 120, 126(7); Mohesky v. City of Washington, Mo.App., 432 S.W.2d 364, 365--366(1, 2) ... To paraphrase ... ...
-
Davis v. Perkins, KCD
...338 S.W.2d 795 (Mo.1960); Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426 (1951); and Mohesky v. City of Washington, 432 S.W.2d 364 (Mo.App.1968)). In conjunction with plaitiff's alleged back injury, a review of the evidence consistent with the above enumerated pri......
-
Behlman v. City of Florissant
...supra, 281 S.W.2d at 863, quoting 29A C.J.S. Eminent Domain, § 117, p. 471 (emphasis added). See also, Mohesky v. City of Washington, 432 S.W.2d 364, 365-366 (Mo.App.1968) (drainage problems caused by raising a street could be considered by the jury in determining whether plaintiff's land w......
-
Hacienda Enterprises No. 2, Inc. v. Smarr, 61575
...finder of fact may weigh that evidence and give it the credibility and value he believes it deserves. See Mohesky v. City of Washington, 432 S.W.2d 364, 366 (Mo.App.St.L.App.1968). Additionally, the rule against hearsay evidence is based on the concept of confrontation and the right of the ......