Scott v. City of Marshall
| Citation | 85 S.W. 98,110 Mo.App. 178 |
| Parties | L. W. SCOTT, Administrator, etc., Respondent, v. CITY OF MARSHALL, Appellant |
| Decision Date | 06 February 1905 |
| Court | Court of Appeals of Kansas |
Appeal from Saline Circuit Court.--Hon. Samuel Davis, Judge.
REVERSED AND REMANDED (with directions).
Action reversed and cause remanded.
J. F Barbee and Duggins & Rainey for appellant.
(1) The verdict was for the right party; and though there may be some error in the instructions given by the trial court the rights of the respondent were not prejudiced. He failed to make out his case. In no event can the city of Marshall be held in damages upon the allegations of his petition and the evidence offered to sustain them. (2) The power of the board of aldermen of the defendant city to condemn old sidewalks and order new ones constructed is a legislative power conferred by the statutes. R. S. 1899, secs. 5960, 5989 and 5991. It may be exercised from time to time as the wants of the corporation may require; and of the necessity and expediency of its exercise the governing body of the corporation, and not the courts is the judge. McCormack v. Patchen, 53 Mo. 36; Farrar v. St. Louis, 80 Mo. 392; Skinker v. Heman, 148 Mo. 349, 64 Mo.App. 441. (3) A legislative act of the city within its charter authority cannot be reviewed except for fraud, or unless it appear that it is a product of whim or caprice and in violation of common right. Skinker v. Heman, 148 Mo. 349; Marionville v. Henson, 65 Mo.App. 397. (4) The respondent is not entitled to damages for the destruction of his shade trees. Of his own volition he planted these trees in the street. He, at that time, had no property rights in the soil of the street, except such as were subject to all rightful and reasonable uses which might be imposed upon it by the city. Building Assn. v. Telephone Co., 88 Mo 217; Ferrenback v. Turner, 86 Mo. 419; Mfg. Co v. Railroad, 113 Mo. 317; Gamble v. Pettijohn, 116 Mo. 375; Williams v. St. Louis, 120 Mo. 403; Brown v. Carthage, 128 Mo. 14; Colston v. St. Joseph, ___ Mo. ___.
Robert M. Reynolds, W. G. Lynch and L. W. Scott for respondents.
(1) Damages resulting to property-owners from the changing of grades of streets and the like and for cutting down and destroying trees in front of the property, are damages for the public use within the meaning of the Constitution. McAntire v. Telephone Co., 75 Mo.App. 540; Walker v. Sedalia, 74 Mo.App. 74; Cole v. St. Louis, 132 Mo. 640. The appellants in their brief, however, apparently undertake to pass by and ignore the errors committed against the respondent upon the trial of the cause, and on account of which the motion for a new trial was granted and invoke the doctrine that notwithstanding the errors committed upon the trial of the cause they were entitled to a judgment upon the verdict, and that therefore the new trial should not have been granted in any event, and in support of this contention say that respondent failed to make out a case. That under the allegations of his petition and the evidence offered to sustain them, the appellant city of Marshall can in no event be held in damages. (2) It is no answer to respondents' claim for appellant to say that it had the right to cut the trees and destroy the sidewalk. It is not the question primarily in this case as to the appellant's rights to make improvements whenever deemed proper and necessary by it (even when proceeding strictly in the manner provided by law for the exercise of such power) but the question rather is as to the right of the respondent property-owner to damages for his property injured or taken for a public improvement, or as to the right of the appellant city to take or damage respondent's property for a public improvement without compensating him therefor. Sec. 21, art. 2, Constitution; Walker v. Sedalia, 74 Mo.App. 71; Rives v. Columbia, 80 Mo.App. 172; McAntire v. Telephone Co., 75 Mo.App. 540. (3) Appellants claim that because they have the right to build sidewalks, etc., that therefore they have the right without anything more to tear up sidewalks already down, but such is not the law. R. S. 1899, sec. 5991. (4) As to whether respondent had any property interests and rights in the trees, situated as the evidence shows they were, we submit that this court in two able, exhaustive opinions, in which all the points now urged by appellant were considered, has decided in favor of respondent's contention. Walker v. Sedalia, 74 Mo.App. 74; McAntire v. Telephone Co., 75 Mo.App. 540; Lockland v. Railroad, 31 Mo. 180; Bridge Co. v. Schanbacher, 57 Mo. 582; Gamble v. Pettijohn, 116 Mo. 375; Snoddy v. Bohn, 122 Mo. 488; Grant v. Moore, 128 Mo. 49; Thomas v. Hunt, 134 Mo. 399.
The plaintiff in 1879 became the owner in fee of lot 85 situate on the north side of East Arrow street in the defendant city and in that year erected thereon a dwelling house and other improvements. In the same year that he acquired title to the lot he planted a row of maple and elm trees in front of it. These trees were about five feet from his lot line as he then understood its location; but about four and one-half feet from the line as located at the time of the doing of the work complained of. Later on he laid down in front of his lot a brick pavement four feet seven inches wide along the sidewalk next his lot. The city had not at that time fixed the grade of the street. The pavement was laid down on the natural surface of the ground. In 1900 the defendant established the grade on Arrow street in front of plaintiff's lot which coincided very nearly with that of the natural surface of the ground along there. In the same year, the defendant--a city of the fourth class--passed an ordinance by which it condemned the sidewalk in front of plaintiff's lot and ordered the street commissioner to remove the same. It was ordered by the same ordinance that an artificial stone sidewalk be constructed and laid down (including grading) according to the plans and specifications on file with the city clerk. The specifications, which were part of the ordinance, required that all trees, stumps and roots for at least twelve inches below the grade of the sidewalk for the full width of the parkway be removed by the contractor. It was further therein required that the park-ways should be graded to the full width thereof from the line of the curb to the line on either side, etc. It was further specified that the proportion of the park-way to be occupied by the sidewalk be excavated to a sub-grade twelve inches below the general grade of the parkway. All the evidence on the subject, including that of the plaintiff himself, is to the effect that the proposed sidewalk could not be made five feet in width without the removal of the shade trees. All of them would either stand within the line of the sidewalk or so close thereto that...
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