Soulard v. City of St. Louis

• Decision Date: 31 October 1865
• Parties: JAMES G. SOULARD, Plaintiff in Error, v. THE CITY OF ST. LOUIS, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 546

JAMES G. SOULARD, Plaintiff in Error,

v.THE CITY OF ST. LOUIS, Defendant in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to St. Louis Court of Common Pleas.

The plaintiff filed the following petition:

“The plaintiff states that, for more than ten years before the year 1855, he and his brothers, Henry G. Soulard and Benjamin A. Soulard were proprietors in fee as tenants in common of a certain tract of land in the city of St. Louis, being the eastern part of the United States survey for James Mackay, and embracing the land in said survey taken and appropriated by the defendant for public use as Jackson street, as hereinafter stated. In the month of September, 1855, said Heny G. and Benjamin A. sold and conveyed to said plaintiff their estate and interest in said tract, and thereby the plaintiff became sole proprietor thereof in fee.

The plaintiff further states that, in the year 1854, the defendant, without any notice to the lawful proprietors of said tract, and without making or offering to them any compensation, and without thei consent, did open and use a portion of said tract, in quantity about one acre and a half, as a public street of said city, by the name of Jackson street, and have ever since used the same as a public street to the present time.

The plaintiff further states that the defendant, by the ordinance of its common council, has established said Jackson street, embracing the portion of said tract opened and used as aforesaid, as a public street of said city; and the plaintiff, within the present year, has signified to the defendant his assent to such opening and use of said street on the terms of the defendants paying to the plaintiff the first value of his land and the improvements thereon taken for such purpose.

The plaintiff further states that the just and fair value of the portion of said tract taken and used for said street as aforesaid, together with the buildings and improvements thereon, was and is the sum of eight thousand dollars; but no part of said sum has ever been paid to the plaintiff, or any other lawful proprietor of said land, buildings and improvements.

For the further assurance of his claim and demand in this action, the plaintiff has obtained from said Henry G. and Benjamin A. Soulard a transfer and assignment of all their demand and causes of action against the defendant for opening and using Jackson street through said tract as aforesaid, and taking and appropriating the portion of said tract for such purposes. The plaintiff files such assignment as an exhibit, the same dated November 3, 1859.

The plaintiff asks for judgment for eight thousand dollars damages, and interest on the same from the time when Jackson street was first opened and used through the forementioned tract of land.”

To this petition a demurrer was sustained.

R. M. Field, for plaintiff in error.

The prejudice in the mind of the judge below against the present action probably had its origin in the circumstance that there is no precedent for such action against the government. The rule is well established that for a wrong committed by the government in the exercise of its right of eminent domain, no suit can be maintained against the government itself in the courts of justice. This rule, however, does not arise from any peculiarity of this particular right, but is general, extending to all the debts and obligations of the government. It has its foundation in public policy, is regarded as the special prerogative of the government, and can never be claimed by private individuals or corporations.

When the power of eminent domain is illegally or unduly exercised by the government, one appropriate remedy for the party aggrieved is an action of trespass against the officers or agents through whose instrumentality the wrong is done; but when, as in the present case, the power is delegated by the government to a corporation, the latter is responsible for the abuse of the power in like manner as for the abuse of any other of its chartered powers.

It is now well settled by authority that a corporation is liable for wrongs committed in the exercise of its chartered powers to the same extent as an individual.--Goodloe v. Cincinnati, 4 Oh. 513; Akron v. Macomb, 18 Oh. 229; Thayer v. Boston, 19 Pick. 516; Bacon v. Baltimore, 2 Amer. Jur. 203; Bissell v. R. R. Co. 22 N. Y. 258. In the last cited case, the court, in its opinion, says: “Corporations, like natural persons, have capacity to do wrong; and when, in their contracts and dealings, they break over the restraints imposed upon them, an exemption from liability cannot be claimed on the ground that they have no power thus to act.”

Angell & Am. (Corp. § 311) sum up the law on this subject in these terms: “As natural persons are liable for the wrongful acts and neglects of their agents done in the course and within the scope of their employment, so are corporations upon the same grounds, in the same manner, and to the same extent.”

By reference to the charter of St. Louis, it will be seen that general power over streets is granted to the city in these words: “8. To open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve, clean, and keep in repair, streets,” &c.

A particular mode of ascertaining damages to property owners is enjoined by 2d sec. of the charter of 1853, as follows: “Whenever the city council shall provide by ordinance for establishing,” &c., “any street,” &c., “and it becomes necessary for that purpose to take private property, and no agreement can be made with the owner thereof, just compensation shall be made therefor to the person whose property is so taken, which the mayor shall cause to be ascertained by a jury,” &c.

The petition, in the present case, sets forth in substance, that the defendant, without any notice to plaintiff, or making or offering to him any compensation, has opened and used a public street through the plaintiff's land, taking for that purpose the quantity of about one acre and a half, and continues to use the same to the present time; for which the plaintiff seeks to recover the value of the land thus taken. That a cause of action is here set forth is too plain for argument; and it is not material whether, under the old practice, the form of the action should have been trespass case, assumpsit, or debt.

In all cases where the property is rendered by the trespass unfit for use by the proprietor, the just measure of damages is the whole value of the property; this was so decided in the case of Jones v. Gooding, 8 Mees & W. 145, where it appeared that a trench had been cut on the plaintiff's land and the soil taken away, and the court decided that the plaintiff was entitled to recover the whole value. So in Mueller v. R. R. Co., 31 Mo. 262, where the Iron Mountain R. R. Co. had entered upon the plaintiff's land, made a road-bed, and ran their trains over it, our own Supreme Court held that the just measure of damages was the whole value of the land. It is believed that the case now before the court cannot be fairly distinguished from the one just cited.

The seventh objection taken in the demurrer is that the city had no lawful authority to take land in the manner charged in the petition. The plaintiff agrees to this proposition; it is, in truth, the precise statement of the plaintiff's grievance. The plaintiff would have had no just cause of complaint if the city and its agents had proceeded in the mode directed in the charter.

It has been urged, in argument, that the mode of ascertaining the damages provided in the charter is to be taken as exclusive of all others; and, in this connection, stress is laid on the provisions for assessing the owner and adjoining...