Robinson v. City of Poplar Bluff

• Decision Date: 07 April 1927
• Docket Number: No. 4064.,4064.
• Citation: 293 S.W. 503
• Parties: ROBINSON et ux. v. CITY OF POPLAR BLUFF.
• Court: Missouri Court of Appeals

293 S.W. 503

ROBINSON et ux. v. CITY OF POPLAR BLUFF.

No. 4064.

Springfield Court of Appeals. Missouri.

April 7, 1927.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

Action by Albert Robinson and wife against the City of Poplar Bluff. Judgment for plaintiffs, and defendant appeals. Affirmed.

O. A. Tedrick and H. H. Freer, both of Poplar Bluff, for appellant.

Sam M. Phillips, of Poplar Bluff, for respondents.

COX, P. J.

Action for damages to property owned by plaintiffs abutting Spring street in the city of Poplar Bluff caused by raising the grade of the street and thereby placing an embankment in front of plaintiffs' property. Trial by jury and verdict for plaintiffs in the sum of 8800. From the judgment rendered thereon, the defendant appealed.

The defendant, city of Poplar Bluff, which is a city of the third class, by ordinance regular in form, raised the grade of Spring street in said city and paved the street. The contract for the work was let to Edward F. Regenhardt and he performed the work in accordance therewith. Regenhardt was a party defendant to this action, but the case was dismissed as to him and the case went to the jury against the city alone. Prior to this time no grade had been established on Spring street in front of plaintiffs' property and the street went over the natural surface of the ground. In providing for this improvement the grade on that street was established for the first time and that resulted in a fill which raised the surface of the street in front of plaintiffs' property some three or four feet. The allegation in plaintiffs' petition is that this change in the level of the street injured their property.

At the beginning of the trial the defendant objected to the introduction of any evidence on the ground that defendant had, as stated in the objection, filed a petition asking for the appointment of three appraisers to view the property of plaintiffs and assess the damage, if any, and that the appraisers had not been appointed. Also that the petition did not state a cause of action. These objections were overruled and exceptions saved. Ti e answer was a general denial, only. If a proceeding under the statute to ascertain and assess plaintiffs' damages had been begun and was then pending, and the facts were such as to bind these plaintiffs to have their damages assessed in that proceeding and defendant desired to abate this suit on the ground of the pendency of another action, it" should have pleaded it. It could not frame the issues upon a general denial and then raise the question of another action pending by objection to the introduction of evidence.

The objection that the petition states no cause of action is not well taken. The petition alleges all facts necessary to show that the elevation of the grade of the street in front of plaintiffs' property was done by the city in a legal way in conformity to the statute. The act, therefore, was the act of the city, and, if damages to plaintiffs' property resulted therefrom, the city was liable. The point is made that the statute (sections 8331, 833...