Smith v. The City of St. Joseph

• Decision Date: 12 June 1894
• Parties: Smith et al. v. The City of St. Joseph, Appellant
• Court: Missouri Supreme Court

27 S.W. 344

122 Mo. 643

Smith et al. v. The City of St. Joseph, Appellant

Supreme Court of Missouri, Second Division

June 12, 1894

Appeal from Buchanan Circuit Court. -- Hon. Henry M. Ramey, Judge.

Affirmed.

Huston & Parrish for appellants.

(1) Plaintiff was not entitled to recover under the pleadings. Gaus v. Railroad, 113 Mo. 309; Julia Building Association v. Tel. Co., 88 Mo. 273; Smith v Railroad, 98 Mo. 24. Under the law the city council could not make a valid contract with the property owners for the purchase of the right to grade, unless an appropriation was made therefor; what it could not do directly it could not do indirectly. Stewart v. City, 79 Mo. 605; Worth v. Springfield, 76 Mo. 107; Worth v Springfield, 22 Mo.App. 12; Crutchfield v Warrensburg, 30 Mo.App. 456. (2) Plaintiff's first instruction is erroneous in that it did not state the rule correctly as to the measure of damages. A public improvement may depreciate the value of private property and yet not be actionable under our constitutional provision. Julia Building Ass'n v. Bell Tel. Co., 88 Mo. 258; Van de Vere v. Kansas City, 107 Mo. 83; Gates v. Railroad, 111 Mo. 28; Gaus & Co. v. Railroad, 113 Mo. 309; Rude v. St. Louis, 93 Mo. 414; Rigney v. Chicago, 102 Ill. 64; Davis v. Railroad, 119 Mo. 180. The constitutional provision is confined to cases where the common law gave a remedy against a private person, but denied it where the act was done under legislative authority by a municipality. Rigney v. Chicago, 102 Ill. 64; Chicago v. Taylor, 125 U.S. 161.

Vinton Pike and Willard P. Hall for respondent.

(1) The provisions of the constitution of this state, which prohibit the damaging of private property for public use without just compensation to the owner, apply to all material changes of the natural surface of the street made for the purpose of making the street conform to the grade lines first established by the city, as fully and completely as they do to changes of the grade of the street after it has once been established and constructed. The citizen has the same right to the original surface of the street that he has to the grade of the street after said grade has once been established and the street brought thereto. Hickman v. Kansas City, 120 Mo. 110; Davis v. Railroad, 119 Mo. 180; City of Fort Worth, 22 S.W. 1059; O'Brien v. Philadelphia, 24 A. 1047; City of Bloomington v. Pollock, 31 N.E. 146; Jones v. Bangor, 23 A. 253. (2) The grading in this case caused material changes in the original surface of the street. A fill was made in the street in front of plaintiff's property from six to ten feet deep. Authorities supra. (3) The court committed no error against defendant in instructing the jury that the measure of damages was the difference between the market value of the property before, and the market value of the property after, the grading of the street. If there was any error, it was in defendant's favor. Hickman v. Kansas City, 120 Mo. 110, and cases cited; City of Ft. Worth, 22 S.W. 1059; Bloomington v. Pollock, 31 N.E. 146. (4) The provisions of the statutes invoked by the appellant's counsel requiring the appropriation of money before the incurring of a pecuniary liability by the city have no application to the liability of the city for a wrong done by it. The liability of the city in this case is imposed by the constitution, and can not be evaded by any failure of the city's officers to perform duties created by law for the city's protection. Hickman v. Kansas City, supra.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

Mrs. Smith and her husband brought this action against the city of St. Joseph for damages which they allege were done to certain lots belonging to Mrs. Smith, in block 11, in the St. Joseph Eastern Extension Addition to said city, by grading Twenty-third street on which said lots abutted. Plaintiffs recovered judgment for $ 250 from which the city has appealed.

The city relied, for its defense to the action, upon a general denial, and upon the following facts, which were admitted: First, that the grading complained of was done in reducing the street to an original or first grade, which was reasonable and constructed in a prudent manner; second, that no money had been appropriated to pay any claim for damages incident to said grading. The assignments of error will be noticed in their order.

I. The failure of the city to appropriate money to cover the damages accruing from the grading is no defense. The statute which is invoked by defendant (section 1303, R. S. 1889,) has no application to a case where a city has committed a tort upon one of its citizens. To permit it to plead its own neglect to provide for damages of its own commission would be subversive of all distinctions between right and wrong. It can not escape the liability imposed upon it by the constitution in this manner. Hickman v. Kansas City, 120 Mo. 110, 25 S.W. 225; Jamison v. Springfield, 53 Mo. 224.

II. Counsel for the city contends that, inasmuch as it stands admitted that the grading complained of was done in reducing the street to an original or first grade, plaintiffs can not recover under the pleadings.

In other words, they assume that the constitution of 1875 does not give an action for damages occasioned to property by grading the streets for the first time; that it must be presumed that every person purchasing a lot on an ungraded street did so in anticipation that the street would some day be brought to a grade by the city to conform to other streets and for all necessary draining and urban improvements. It is this constitutional question alone which gives this court jurisdiction of the case, as, otherwise, it is clearly without our jurisdiction.

We are relieved of further discussion of the question by the very satisfactory and convincing decision in Davis v. R'y Co., 119 Mo. 180, 24 S.W. 777, in which division number one of this court, through Macfarlane, J., held that, under section 21 of article 2 of the constitution of 1875, a city is liable to abutting property owners for a material change of the grade of a street from the natural surface. That decision was subsequently approved by this court in. banc in Hickman v. Kansas City, 120 Mo. 110, 25 S.W. 225. As plaintiffs' first instruction was consistent with those decisions, no error was committed in giving it.

III. The only...