Schattner v. City of Kansas

Decision Date31 July 1873
Citation53 Mo. 162
PartiesFREDERICK SCHATTNER, Plaintiff in Error, v. THE CITY OF KANSAS, Defendant in Error.
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court.

Brown & Case, and Lay & Belch, for Plaintiff in Error.

The city could not act under one part of section 4, of their charter, avoid the other part, and escape liability occurring through their action. (City of Reading vs. Keppleman, 61 Penn. St., 233; Thurston vs. City of St. Joseph, 51 Mo., 510.)

J. Brumback & H. P. White, for Defendant in Error.

1. Under the Charter of 1867, Clause 8, § 1, the city had power to establish and change the grade of the streets.

2. From the importance and nature of the work, the Common Council had good reason to delay final action under Sec. 4 of Art. 8, and in the meantime had full and ample power to grade and regrade under Clause 8 of Sec. 1 of Art. 6. (City of Reading vs. Keppleman, 61 Penn. St., 233.)

3. The City cannot be held liable for damages accruing merely from the change of the grade of a street. (St. Louis vs. Gurno, 12 Mo., 415; Taylor vs. St. Louis, 14 Mo., 20; Hoffman vs. St. Louis, 15 Mo., 651. Dill. Mun. Corp. [[[[[1st Ed.] 782-3; Id. 741-2, and cases cited.)

4. The duty to establish a general system of grades was not of such absolute and perfect obligation as to render the City liable in damages for mere non-action.

NAPTON, Judge, delivered the opinion of the court.

The plaintiff in this case was the owner of a lot at the southwest corner of Main and 12th streets, in McGee's Addition to Kansas City. In May, 1868, intending to build on this lot, he applied to the City Engineer to set the grade for the corners of his honse even with the level of Main and 12th streets. He avers in his petition, that this was the duty of the engineer, and that the grade of 12th and Main streets was then established at 169 feet above the city directrix, and that the engineer gave him the information requested, and he built his house accordingly. After his building was completed, the City altered the grade of Main and 12th streets at their intersection, lowering it to 165 feet above the city directrix--by which change the building is left four feet above the present grade, and for this his damages are claimed. He had presented his bill ($2,000) to the Mayor and Common Council, in February, 1870, but they declined to pay it.

The answer of the city is simply a denial of every allegation in the petition.

The petition was, by leave of Court, amended. In this amended petition it is alleged, that under the provisions of Section 4 of Article 8 of an act to incorporate Kansas City, approved March 12, 1867, it was the duty of the Common Council as soon as practicable to provide for the establishment, by the city engineer, of the grades of each and every corner or street within the limits of said city, and to require the city engineer to prepare perfect profiles of said streets, exhibiting the grade at the crossings and the elevation at all grade points; which profiles it was the duty of the Common Council to adopt, and then the engineer was directed to prepare a corrected diagram of the streets, exhibiting the gradation thereof--and this diagram was to be suspended in the office of the city clerk for public inspection; and this act and section further provided, that after said gradation was established no change could be made, except by ordinance passed by two-thirds of the council, and after due notice and publication in one of the daily newspapers.

The amended petition then avers that an ordinance was made in August, 1868, establishing the grade at the crossing of Main and 12th streets at 169 feet above the city directrix.

The petition then proceeds to allege his building on the grade pointed out by the engineer as in the original petition.

The plaintiff then proceeds to aver, that the Common Council wholly failed to follow the directions of Section 4, Article 8, of charter or amended charter of 1867; that they failed to have grades established; that no profiles were made; that no connected diagram was prepared and exhibited in the office of the city clerk as by law was required.

The plaintiff then states, that by the provisions of said Section 4, of said act of March 12, 1867, defendant became liable to pay all damages sustained by any one by reason of a change of grade, and that he presented his claim to the Mayor, etc.

The answer of the defendant to this amended petition sets up argumentatively the defense of the city. It insists that the ordinance changing the grade of Main street, approved February 8th, 1869, was not passed by reason of any authority under Section 4 of Article 8, but was adopted under Section No. 1 of Article 6, of the charter, which provided, that said Common Council should have power “to alter, open, widen, extend, straighten, establish, regulate grades, regrade, clean, or otherwise improve, the streets,” and that the change in the grade of Main street in front...

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24 cases
  • State v. Christopher
    • United States
    • Missouri Supreme Court
    • 11 Julio 1927
    ...changed. The rule of these cases was disapproved in Thurston v. The City of St. Joseph, 51 Mo. 510 ; but in the case of Schattner v. The City of Kansas, 53 Mo. 162, the court returned to the old doctrine, and so the law continued down to the adoption of the Constitution of 1875. * * "The em......
  • The State ex rel. Oliver Cadillac Co. v. Christopher
    • United States
    • Missouri Supreme Court
    • 27 Septiembre 1927
    ...which the work was done. [St. Louis v. Gurno, 12 Mo. 415; Taylor v. St. Louis, 14 Mo. 23; Hoffman v. St. Louis, 15 Mo. 656; Schattner v. City of Kansas, 53 Mo. 162; Imler v. Springfield, 55 Mo. 119; Wegmann City of Jefferson, 61 Mo. 55; Swensom v. Lexington, 69 Mo. 157; Stewart v. Clinton, ......
  • McGrew v. Granite Bituminous Paving Co.
    • United States
    • Missouri Supreme Court
    • 12 Febrero 1913
    ...which the work was done. [St. Louis v. Gurno, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Schattner v. City of Kansas, 53 Mo. 162; Imler v. Springfield, 55 Mo. 119; Wegmann City of Jefferson, 61 Mo. 55; Swenson v. Lexington, 69 Mo. 157; Stewart v. Clinton, ......
  • Kansas City v. Woerishoeffer
    • United States
    • Missouri Supreme Court
    • 28 Marzo 1913
    ...by law. St. Louis v. Gurno, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Schattner v. Kansas City, 53 Mo. 162. "To grade a street or alley already dedicated to public use is not an exercise of eminent domain so as to require compensation, if it is done skilf......
  • Request a trial to view additional results

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