Sheehy v. Kansas City Cable Ry. Co.

• Decision Date: 19 March 1888
• Parties: SHEEHY v. KANSAS CITY CABLE RY. CO.
• Court: Missouri Supreme Court

7 S.W. 579

94 Mo. 574

SHEEHY v. KANSAS CITY CABLE RY. CO.

Supreme Court of Missouri.

March 19, 1888.

1. MUNICIPAL CORPORATIONS — GRADING STREETS — INJURY TO PROPERTY — RIGHT TO COMPENSATION.

A city, empowered by its charter to grade its streets, cannot make such alterations in the grade as to injure private property, without making just compensation therefor, under Const. Mo. art. 2, § 21, providing that private property shall not be damaged for public use without just compensation.

2. DAMAGES — EXCESSIVE RECOVERY — CHANGE OF STREET GRADE.

In an action for damages caused to property by lowering the grade of a street, photographs of the physical facts bearing upon the question were introduced in evidence, and the plaintiff's testimony, supported by two witnesses, placed the damage at over $5,000, while a number of witnesses for defendant testified that the property was in nowise injured by the change. Held, from the evidence, a verdict for $5,000 does not show such excessive damages as will justify a reversal of the judgment.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Action by Thomas Sheehy, plaintiff and respondent, against the Kansas City Cable Railway Company, defendant and appellant, to recover damages to property caused by lowering the grade of a street.

Johnson & Lucas, for appellant. C. O. Tichenor, for respondent.

NORTON, C. J.

Plaintiff, as the owner of a certain lot in Kansas City, with three dwelling-houses upon it, with a frontage of 192 feet on Ninth and 50 feet on Jefferson streets, in said city, sues for damages to said property alleged to have been occasioned by the act of defendant in cutting down and lowering the grade of said Ninth street below the grade established in 1879, when said houses were built on said lots. Defendant justified the act under an ordinance of the City of Kansas, approved April 4, 1883, authorizing J. W. Smith and others to construct and operate, for the term of 30 years, an endless cable street railroad on and over certain streets, one of them being said Ninth street, from Grand avenue west to the west boundary line of Coates addition. This ordinance authorizes a change in the grade of Ninth street, in front of plaintiff's lot; and the evidence shows that the grade was, by defendant, cut down and lowered, below the grade established in 1879, 20 feet at the west end of plaintiff's lot, 15 feet and 3 inches opposite the west house on said lot, 6 feet at the middle house, and that the two grades came together at the west line of Jefferson street. In regard to the damage occasioned by this change of grade to plaintiff's property, the evidence is conflicting, and on the trial judgment was rendered for plaintiff for $5,000, from which defendant has appealed, and seeks a reversal for alleged error in the action of the court in giving and refusing instructions, and because the damages are excessive.

The court, as shown by the instructions given, as well as by those refused, tried the case on the theory that, while the city had the right by ordinance to change the grade of said street in front of plaintiff's property, and to authorize defendant to make such change, still the defendant was liable for any damage resulting to plaintiff by reason of such change. It is insisted by counsel that this theory was erroneous, and that the city being fully empowered by its charter to grade, alter, and change the grade of its streets; and having changed the grade of Ninth street at this locality by ordinance, and authorized and permitted defendant to grade the same for the purpose of constructing its road thereon, it is not liable for damages resulting therefrom. This point is not well taken. Anterior to the adoption of the constitution of 1875, and as far back as the case of City of St. Louis v. Gurno, 12 Mo. 414, it was the established rule in this state that, where a municipality was invested with the control of its streets, and the power to fix, alter, and change the grade of the same, that any damage resulting to an abutting property owner from the change of grade was damnum absque injuria, unless the injury could be shown to have...