Rude v. City of St. Louis

• Decision Date: 19 December 1887
• Parties: RUDE v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

6 S.W. 257

93 Mo. 408

RUDE v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri.

December 19, 1887.

1. MUNICIPAL CORPORATIONS — OBSTRUCTION OF STREET BY RAILROAD COMPANY — RIGHTS OF ABUTTERS.

To recover for an injury to property by obstructing a street on which it abuts, the plaintiff must show damages special and peculiar to his property, and different in kind from those suffered by the public generally; and this rule is not affected by Const. Mo. 1875, art. 2, § 21, which provides that "private property shall not be taken or damaged for public use without just compensation."¹

2. SAME.

In an action to recover damages for injury to property by obstructing the street on which it abutted 500 feet from the property, it appeared from the evidence that the plaintiff's only injury was his inability to use that street, which inconvenience was suffered alike by the public generally. Held, that the plaintiff was not entitled to recover.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge. Transferred from St. Louis court of appeals.

L. Bell, Bennett & Pike, and H. S. Priest, for appellants. M. F. Taylor and Julian McLaughlin, for respondent.

BLACK, J.

The plaintiff owns, and for many years has owned, a lot in St. Louis at the corner of High street and Scott avenue, and upon which he has three buildings, — two dwelling houses, and a one-story grocery store. About 500 feet south of his property, the tracks of the Missouri Pacific Railway Company and the Wabash, St. Louis & Pacific Railway Company cross High street in an east and west direction. High street runs north and south. These tracks were at the grade of the street, and were put down and used by authority of law. The city built a viaduct or bridge over the tracks at Jefferson avenue, which is the next street west of High street. In November, 1880, the city, by ordinance, gave the railroad companies permission and authority to depress their tracks at Jefferson avenue and High street. This was done to accommodate and conform to a system of bridges which the city was building, and expected to build, over the railroad tracks, and pursuant to an agreement before made by the city and the railroad companies. After the passage of this ordinance, and pursuant to the previous agreement with the city, the railroad companies depressed their tracks at Jefferson avenue and High street. This work was done in the winter of 1880 and 1881, and it left an excavation across High street from four to six feet in depth. The street remained in that condition, wholly impassable for teams, to the trial of this cause, in 1884. At the time of the excavation, High street was an improved public highway. Plaintiff brought this suit against the city and both of the railroad companies to recover damages because his property had been permanently injured, and its rental value depreciated, by reason of the obstruction in the street. He recovered judgment for $2,000 for permanent injuries to his property, and defendants appealed.

The defendants have made a controversy as between themselves which we do not stop to consider. There is no doubt but the right of an owner of a lot in a town or city to the use of the adjoining street is a property right, and a right of which he cannot be deprived without just compensation. This right, it has been said, is as much property as the lot itself. Lackland v. Railroad Co., 31 Mo. 181; Bridge Co. v. Schaubacher, 57 Mo. 582; Ferrenbach v. Turner, 86 Mo. 416. As showing that the plaintiff has been deprived of that right, we are cited to the following cases: Lackland v. Railroad Co., supra; Swenson v. City of Lexington, 69 Mo. 157; and Cross v. Railway Co., 77 Mo. 318. These cases recognize the right of a railroad company to lay down and use its track upon a street when that right is conferred upon it by the municipality; the municipality having the power delegated to it to grant that right. Still the track must be laid upon the grade of the street and the railroad so used as not to unreasonably deprive the owner of the property of the use of the street. In the first of these cases, the defendant built a main and side track, with a connecting switch, upon an embankment in front of the plaintiff's property. So, in the other cases, the obstructions were in the street, and in front of the property owned by the plaintiffs, and wholly, or to an unreasonable extent, cut off communication to and from the street. But in this case the obstruction is 500 feet south of the plaintiff's lot. In Dill. Mun. Corp., we find this statement: "Although the distinction between the nature of the rights of the public in a street, and the right of an individual proprietor to access to his premises from the street, has been often overlooked, yet it is one which has been asserted by high authority. The right of the abutting owner to access to and from the street is a...