Smith v. Kansas City, St. J. & C. B. Ry. Co.

• Citation: 11 S.W. 259,98 Mo. 20
• Parties: SMITH v. KANSAS CITY, ST. J. & C. B. RY. CO.
• Decision Date: 23 March 1889
• Court: United States State Supreme Court of Missouri

11 S.W. 259

98 Mo. 20

SMITH v. KANSAS CITY, ST. J. & C. B. RY. CO.

Supreme Court of Missouri.

March 23, 1889.

EMINENT DOMAIN — USE OF STREET — ABUTTING OWNERS.

Defendant constructed its railroad upon a public street for which no grade had been established, but which would evidently require grading in the near future. The track was laid two or three feet above the natural level of the street, practically cutting off access from the street to plaintiff's abutting lots. Held, that plaintiff was entitled at least to nominal damages, and to such actual damages as he may suffer by the diminution of rental value, but could not recover for a depreciation in the total value of the inheritance, as it cannot be presumed, in view of the condition of the street, that a permanent nuisance was intended.

Appeal from circuit court, Buchanan county; JOSEPH P. GRUBB, Judge.

Plaintiff is the owner of certain vacant lots fronting on Fifth street, in St. Joseph, Mo. He brings this action to recover for damages sustained by the erection of an embankment on which defendant's railway track is located in that street in front of plaintiff's lots. Plaintiff became nonsuited in the circuit court by reason of the giving of an instruction that he could not recover. This ruling he here seeks to reverse, his motions to that end having been denied by the trial court. The issues will be apparent without a full statement of the pleadings.

The evidence showed that the defendant railroad had received state and municipal authority to lay its track in this street. It had done so, first locating one track, and afterwards a second. The latter is the subject of complaint in this action. The track is some two or three feet above the natural level of the street in front of plaintiff's lots, and is so laid as to seriously impede, if not entirely obstruct, access to the latter from some parts of the street. The dedication of the property was made in 1858. No public improvements have yet been placed upon the land indicated as a street on the plat. It yet remains in its natural state, without sidewalks, curbs, gutters, or any form of artificial grading. The city authorities have never established any grade by ordinance. The evidence tends to show that south of Mitchell avenue, on Fifth street, two streams, each some 30 feet wide, with beds some 12 feet deep, cross, one of which also runs along the street some two blocks. Several of the plaintiff's lots lie between these streams. The ground is the...