Stealey v. Kansas City

• Court: Missouri Supreme Court
• Writing for the Court: BURGESS, J.
• Citation: Stealey v. Kansas City, 179 Mo. 400, 78 S.W. 599 (Mo. 1904)
• Decision Date: 01 February 1904
• Parties: LOIS STEALEY, by Next Friend, Appellant, v. KANSAS CITY

78 S.W. 599

179 Mo. 400

LOIS STEALEY, by Next Friend, Appellant, v. KANSAS CITY

Supreme Court of Missouri, Second Division

February 1, 1904

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

Henry J. Latshaw, Jr., for appellant.

(1) The passage of an ordinance by a municipality providing for the laying of a sidewalk on a street is a recognition by the city of the street as a public street of the city which it is bound to keep in repair. Hill v. Sedalia, 64 Mo.App 494; Byerly v. Anamosa, 79 Iowa 204; Seymour v Salamanca, 137 N.Y. 364. And this is true whether the highway was inside or outside the city limits, provided it was not more than five miles outside. This is so because of the following statute in force at the time: R. S. 1889, sec 7846. The court will take judicial notice of the amendment to the city charter adopted December 2, 1897, by which Denver avenue was brought within the city and it will be seen by reading it that it does not take in territory more than five miles from the city limits so that Denver avenue is within the five-mile limit. Hence we have a distinct recognition by ordinance on the part of Kansas City that Denver avenue was a public highway of the county before the territory through which it runs was annexed. (2) Even though Denver avenue was not a public street, defendant is estopped from denying that on July 8, 1898, the sidewalk was a public sidewalk. For many years prior to July 8, 1898, defendant held this sidewalk out to the public as a public sidewalk upon a public street. There were no indications of any kind or nature that it was not upon a public street. It was laid by defendant itself in October, 1890, in the same manner and of the same material as all other second-class sidewalks were laid by defendant. It was used at all times as a public sidewalk by the general public with defendant's consent. Under these circumstances it is immaterial whether or not as a matter of fact it was or was not upon a public street. The city owed the public the same duty of repair in either instance. O'Malley v. City of Lexington, 74 S.W. 890; Village of Mansfield v. Moore, 124 Ill. 133; Beach on Public Corporations, sec. 1499. (3) Denver avenue was a public highway of the county before it was legally brought within the city and became a public street of the city by the annexation without further act on the part of the city. The agreed statement of facts recites that it was used as a street continuously for a number of years prior to the accident. While as a matter of fact it was more than ten years since the land was platted and the street dedicated on the plat, yet it has been held by this court that user for a less period than ten years, where the intention of the owners to dedicate clearly appears "aliunde," is sufficient to make a dedication and acceptance by user. Bauman v. Boeckeler, 119 Mo. 189; Johnson v. St. Joseph, 71 S.W. 106; Zimmerman v. Snowden, 88 Mo. 218; State v. Davis, 26 Mo.App. 75; State v. Proctor, 90 Mo. 334; Brown v. Railroad, 20 Mo.App. 427.

R. J. Ingraham and L. E. Durham for respondent.

(1) Kansas City had no power to establish or improve Denver avenue as a highway outside its limits. Art. 3, sec. 1, subdiv. 5, city charter; art. 9, sec. 2, city charter; St. Louis v. University, 88 Mo. 155. Section 7846, Revised Statutes 1889, has no application to Kansas City. State ex rel. v. Kansas City, 99 Mo. 352. (2) The passage of ordinance No. 2345 was, therefore, ultra vires and the city is not estopped from denying that Denver avenue was a public highway. State ex rel. v. Murphy, 134 Mo. 548; St. Louis v. Davidson, 102 Mo. 149; Scovill v. Thayer, 105 U.S. 143; Railroad v. Railroad, 118 U.S. 317. (3) Kansas City had not in any way accepted Denver avenue prior to plaintiff's injury and is therefore not liable. Downend v. Kansas City, 156 Mo. 60; Carle v. DeSoto, 156 Mo. 443; Johnson v. St. Joseph, 96 Mo.App. 663; St. Louis v. University, supra.

OPINION

BURGESS, J.

This is an action for ten thousand dollars damages (for which plaintiff, a minor, sues by her next friend), alleged to have been sustained by her on a plank sidewalk on a street in Kansas City.

The petition alleges that in the evening of July 9, 1898, the plaintiff, Lois Stealey, then a girl about fourteen years old, was walking with several other persons south upon a plank sidewalk on the west side of Denver avenue, when she stepped with her right foot into a hole in the sidewalk, caused by a broken board, and received severe bodily injuries.

The answer was a general denial.

On the trial plaintiff was nonsuited on the ground that the evidence failed to show that Denver avenue was a public street in Kansas City at the time of the accident. In due time plaintiff filed her motion to set aside the nonsuit and for a new trial, which being overruled, she saved her exceptions, and brings the case to this court by appeal for review.

The hole in the sidewalk had existed for several months prior to the accident. On December 4, 1889, Denver avenue was, and for some time prior thereto, had been, a public highway in Jackson county, outside of Kansas City at that time. On that day the city undertook to annex certain territory including Denver avenue. On January 19, 1891, this court held the extension illegal. In the meanwhile, viz., in October, 1890, the sidewalk on which plaintiff was injured was laid by respondent pursuant to ordinance No. 2345, of Kansas City, approved September 10, 1890. The extension having been declared illegal, Denver avenue remained outside the city until December 2, 1897, when the city again extended its limits and again took in Denver avenue.

"The sidewalk where plaintiff was injured was on the date of her injuries open to general public travel and had been so used for a number of years continuously prior to said accident. There were no signs or warnings of any kind to notify the public that said sidewalk was not on a street or avenue in said city, and the sidewalk where plaintiff was injured was at all of said times used by the general public for the purpose of travel in the ordinary manner."

From the time that the Supreme Court held the ordinance extending the limits of Kansas City invalid, and up to and including the date of plaintiff's injury, defendant city did not attempt to exercise any jurisdiction or control over said street.

Plaintiff contends that the passage of the ordinance by defendant city providing for the laying of a sidewalk on Denver avenue was a recognition by the city of such street as a public street which it was bound to keep in repair.

It seems to be well settled that where a city by ordinance has required a street within the city limits to be improved by the construction of a sidewalk therein, and that in pursuance of such an ordinance a sidewalk is constructed, the city is bound to keep it in repair and is liable in damages for injuries occasioned by its failure to do so. [Hill v. Sedalia, 64 Mo.App. 494; Golden v. City of Columbia, 54 Mo.App. 100; Byerly v. Anamosa, 79 Iowa 204, 44 N.W. 359; Seymour v. Salamanca, 137 N.Y. 364, 33 N.E. 304.] But it is clear from the record that at the time of the injury complained of Denver avenue was not within the corporate limits of defendant city. By section 1, subdivision 5, of the city charter of Kansas City the common council is given exclusive control and power over the streets and sidewalks of the city. By section 2 of article 9, the city is given power to cause to be graded all streets, and to construct and re-construct all sidewalks within the city limits; but no power is conferred by the charter upon the city to grade or improve roads or streets, or to construct sidewalks beyond or outside of the city limits.

The City of St. Louis v. St. Louis University, 88 Mo. 155, was an action of ejectment for the possession of a street, which was dedicated by the owner to the public in 1821. In 1882 by the charter of the city its limits were fixed so as to leave the street in question outside of the city limits. While it was thus outside the limits the city surveyor was, by the proper authorities, ordered to, and did make and return a plat to the board of aldermen, of the city, showing the street on the map as a public highway open for travel. This act of the city, it was contended by plaintiff, constituted an acceptance of the street. The court says:

"The city had no jurisdiction. It...