Stroker v. City of St. Joseph

• Citation: 93 S.W. 860,117 Mo. App. 350
• Parties: STROKER et al. v. CITY OF ST. JOSEPH.
• Decision Date: 05 March 1906
• Court: Court of Appeal of Missouri (US)

93 S.W. 860

117 Mo. App. 350

STROKER et al. v. CITY OF ST. JOSEPH.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

1. TRIAL—EXCLUSION OF EVIDENCE.

In an action to recover damages for change in a street grade, plaintiff's attorney sought to prove the necessity of building a retaining wall on another street to retain the necessary fill placed on the lot, when the court said: "How can a retaining wall be necessary there, when your witness, the plaintiff himself, says the fill on the west side would be about three feet?" to which counsel replied that his question was directed to the retaining wall at the other street, where the fill was 15 feet, to which the court responded that plaintiff would have his remedy if the city undertook to grade such street. Held, that the court's statement was not a mere colloquy, but amounted to an exclusion of evidence as to the necessity of the construction of such retaining wall.

2. MUNICIPAL CORPORATIONS — STREETS — CHANGE OF GRADE—DAMAGES.

Where property adjoining two streets was injured by a change of grade of one of them, so that it was necessary to build a retaining wall along the street not graded to hold a 15-foot fill. The construction of such retaining wall was a part of the damages sustained by the change of grade, for which the owner of the lot was entitled to compensation as provided by Const. art. 2, § 21.

3. SAME—MEASURE OF DAMAGES.

Where plaintiff's property was damaged by a change in the grade of a city street, the measure of his damages was the cost of restoring the property, provided such cost was less than the diminution of the market value.

Error to Circuit Court, Buchanan County; H. M. Ramey, Judge.

Action by Frank E. Stroker and another against the city of St. Joseph. From a judgment in favor of defendant, plaintiff brings error. Reversed.

Sterling P. Reynolds, for plaintiff in error. William B. Norris and Edwin M. Spencer, for defendant in error.

BROADDUS, P. J.

Plaintiffs, as the owners of lots 13, 14, 15, and 16 and the east 10 feet of lot 17 in block 14, in Highley's addition to the city of St. Joseph, seek to recover damages against the defendant city, alleged to have been caused by the grading by the latter of Highley street, upon which said lots abutted. The trial resulted in a judgment for defendant, and the plaintiff sued out this writ of error.

The lots in question have a frontage of 110 feet on Highley street, and extend north to an alley and adjoin Sixteenth street. Before the grading, they were about on a level with Highley and Sixteenth streets. They were on low ground or, as some of the witnesses described them, in a hollow. After the grading was completed, it appeared that the west part of the lots at Highley street was...