Schumacher v. City of St. Louis

• Decision Date: 06 February 1877
• Citation: 3 Mo.App. 297
• Parties: WILLIAM SCHUMACHER, Respondent, v. CITY OF ST. LOUIS, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 297

WILLIAM SCHUMACHER, Respondent,

v.CITY OF ST. LOUIS, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 6, 1877.

1. Under section 1, article 12, of the Charter of the city of St. Louis, the city is liable for damages sustained by owners of real estate upon which permanent buildings have been erected, by any change of the grade of any street upon which the real estate fronts. By ordinance the grade of a street was changed, by which plaintiff's property was damaged. Held, that the change was within the corporate powers of the city, made by authority of officers having charge of that department, and impliedly ratified by the corporate authorities; hence valid, and the city was liable.

2. Where a change of grade has been made, by which the plaintiff's property was damaged, to entitle him to recover it is not necessary that the work of grading shall have been completed. It is enough if he has been injured by the work done.

3. Under section 3, article 3, of the City Charter, in order to give validity to a special ordinance which is in conflict with a general ordinance, the general ordinance must be first repealed. But the rule does not apply where both ordinances are special. A special ordinance may, by implication, be repealed by the effect of a subsequent special ordinance in conflict with it.

APPEAL from St. Louis Circuit Court.

Affirmed.

E. T. Farish, for appellant, cited: Dill. on Mun. Corp., secs. 543, 767; Gurno v. City of St. Louis, 12 Mo. 414; Schappner v. City of Kansas, 53 Mo. 162.

R. E. Rombauer, for respondent, cited: Dill. on Mun. Corp., secs. 766, 769, 770, and cases cited; Pekin v. Newell, 26 Ill. 330; Thayes v. City of Boston, 19 Pick. 511, 515, 516; City of St. Louis v. Sanguinet, 49 Mo. 581.LEWIS, P. J., delivered the opinion of the court.

By ordinance No. 2884, approved August 18, 1852, the corporate authorities of the city of St. Louis established the grade of Victor Street between Menard and Rosatti. In 1870 the plaintiff, owning a lot fronting on Victor Street, in the locality mentioned, built a brick house thereon at a cost of $6,000. He had ascertained the grade from an assistant engineer of the city, and so constructed the building that the first floor would be considerably above the level of the street, and the basement would not be subject to drainage from the surrounding ground. Afterwards, by ordinance No. 8068, approved July 11, 1872, the city declared a new grade at the point indicated, several feet higher than the former one, and caused the street and adjacent alley to be filled up with earth, so that the basement of plaintiff's building was much below the level of the street. The earth now rose higher than the stone foundation, the walls became damp, and the water, at times, flowed into the basement. Plaintiff instituted this suit for the injuries so caused, and obtained judgment for $1,250.

Upon general principles, no liability attaches to a municipal corporation for losses resulting from a change of grade in the streets. But by section 1, article 12, of the Charter of St. Louis it is provided that “the city shall be liable for damages sustained by the owners of real estate upon which permanent buildings shall have been erected, by any change of the grade of any street upon which such real estate shall front.” It is here contended for the city, however, that ordinance No. 8068 was invalid, and, therefore, the corporation could not be held liable on account of any grading done under it.

If the act from which injury results be wholly beyond the scope of powers conferred on the municipal corporation, the latter cannot be held responsible in damages. But if it be within the scope of such powers, and be authorized by the...