Swenson v. City of Lexington

• Decision Date: 31 October 1878
• Parties: SWENSON v. THE CITY OF LEXINGTON, Appellant.
• Court: Missouri Supreme Court

69 Mo. 157

SWENSON

v.THE CITY OF LEXINGTON, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Ray Circuit Court.--HON. GEO. W. DUNN, Judge.

Alexander Graves for appellant.

1. The court erred in giving respondent's instruction number 2. Gurno v. St. Louis, 12 Mo. 418; Alexander v. Milwaukee, 16 Wis. 247, 256; Green v. Reading, 9 Watts 382; O'Conner v. Pittsburgh, 18 Pa. St. 187; Smith v. Washington, 20 How. (U. S.) 135; Taylor v. St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Murtaugh v. St. Louis, 44 Mo. 480; Barry v. St. Louis, 17 Mo. 121; Clark v. H. & St. J. R. R. Co., 36 Mo. 218; Hillsdorf v. St. Louis, 45 Mo. 98; Bailey v. New York, 3 Hill 539; Murphy v. Chicago, 29 Ill. 279; 2 Dillon on Munic. Corp., (2 Ed.) § 553; Green v. Portland, 32 Me. 431; Roll v. Augusta, 34 Ga. 326; Tate v. M., K. & T. R. R. Co., 64 Mo. 149.

2. The court erred in giving respondent's instruction number three. Lackland v. N. M. R. R. Co., 34 Mo. 259; Porter v. Same, 33 Mo. 138.

3. The court refused instruction number five asked by appellant. Mayor v. Randolph, 4 Watts & Serg. 516; Wilson v. Mayor, 1 Denio 597; 2 Dillon Munic. Corp., (2 Ed.) §§ 797, 798, 799; Turner v. Dartmouth, 13 Allen 291; Dickinson v. Worcester, 7 Allen 19; Gannon v. Hargadon, 10 Allen 106; Flagg v. Worcester, 13 Gray 601; Franklin v. Fisk, 13 Allen 211.

4. The court refused instruction number eleven asked by appellant. Lackland v. R. R. Co., 31 Mo. 180; 33 Mo. 138; Hinchman v. Paterson Horse Ry. Co., 17 N. J. (2 C. E. Green) 75, 83; Barry v. St. Louis, 17 Mo. 121.

Walker & Field for respondent.

1. Respondent's right to sue cannot be successfully controverted. He owned the soil to the middle of the street, subject only to the easement of the public as a highway. The charter of the city of Lexington gives the city no power to authorize such an obstruction, as the evidence shows the railroad placed in the street in question. Lackland v. N. M. R. R, Co., 31 Mo. 180; Bridge Co. v. Schaubacher, 57 Mo. 582. Hence the city cannot plead in bar, the ordinance passed by the council granting the right of way to the company.

2. It is the duty of the city, expressly made so by her charter, to keep her streets free from obstruction; and she has no power, unless authorized by statute, to divest herself of this duty by ordinance; and no statute giving such authority is in existence. Currier v. Lowell, 16 Pick. 170; Willard v. Newbury, 22 Vt. 458; Batty v. Duxbury, 24 Vt. 155; Philadelphia v. Weller, 1 Leg. Gaz. Rep. 400; Watson v. Tripp, 15 Am. Law Reg. 282; Charter of the City of Lexington, p. 9, art. 4, § 9. This section is imperative and not discretionary. Dillon Munic. Corp., (1 Ed.) 110, § 62; Blake v. St. Louis, 40 Mo. 569; Smith v. St. Joseph, 45 Mo. 449; Weet v. Brockport, 16 N. Y. 161, note; Bowie v. Kansas City, 51 Mo. 454; Williams v. Tripp, 16 Am. Law. Leg. (U. S.) 613.

3. The plaintiff may look to the city for damages, or he may look to the railroad company; and if he elects to sue the city, she has recourse upon the railroad company for the damages she may have to pay. Dillon Munic. Corp., (1 Ed.) 766, § 796; Philadelphia v. Weller, 1 Leg. Gaz. Rep. 400.

4. The city, in granting the right of way to the railroad company, was not engaged in the performance of a duty imposed by law; and if she had refused to grant the right of way, there is no law by which the railroad company could enforce it. Hence the city occupies the position of a private corporation engaged in a private enterprise for her own benefit, and is liable for the damage done to respondent's property by reason of the total obstruction of the street in front thereof. Bailey v. Mayor, 3 Hill 531; Hannon v. County of St. Louis, 62 Mo. 313.

5. The grant of the right of way to a railroad company over a public street, will not authorize the placing of any obstruction in the street such as will render it useless as a street. Lackland v. N. M. R. R. Co., 31 Mo. 181; Fletcher v. The A. & S. R. R. Co., 25 Wend. 462; Porter v. N. M. R. R. Co., 33 Mo. 128; 1 Redfield on Railways, 540, 542.

6. The city, by its council, having authorized a railroad to lay its track in a street, it is her duty to direct and control the work so undertaken, and a failure to do so is such culpable negligence as will make her liable. City Charter, art. 4, § 9, sub-division 29, p. 12; Shearman & Redfield on Negligence, § 147, p. 184, § 149; Wendell v. Troy, 39 Barb. 329,affirmed in 4 Keyes 261; Hutson v. Mayor, 9 N. Y. 163; Congreve v. Morgan, 5 Duer 495.

7. The fact of the city having granted the right of way to the railroad company does not exempt the city from liability for damage done by the company in the prosecution of its work. The property of citizens must be protected. The following authorities are decisive of this case: Stack v. East St. Louis, 5 Cent. Law Jour. 385; City of Pekin v. Brereton, 67 Ill. 477; Nevins v. City of Peoria, 41 Ill. 502; City of Aurora v. Gillett, 56 Ill. 132; City of Aurora v. Reed, 57 Ill. 29; City of Dixon v. Baker, 65 Ill. 518; City of Alton v. Hope, 68 Ill. 167.

HENRY, J.

Plaintiff was owner of a lot on Water street in the city of Lexington, on which he had a dwelling house. The grade of said street had been established by the city prior to June 3rd, 1872, when the city council passed an ordinance granting the Burlington & Southwestern Railway Company a right of way along said street for the purpose of constructing and operating a railroad thereon. The company, under this ordinance, made an embankment along the street, in front of plaintiff's property, from twelve to fifteen feet high, and, according to the testimony of some of the witnesses, several feet above the established grade of the street, preventing the entrance to plaintiff's property by vehicles from the street, obstructing the flow of falling water, and causing it to stand in a pond in front of and upon said property and otherwise damaging said property. The evidence tended to establish the allegations in the petition, and the questions presented arise upon instructions given for plaintiff, and instructions refused which were asked by defendant.

The following were given for plaintiff: 1. The court instructs the jury that if they believe from the testimony that plaintiff has been in the uninterrupted and continued possession of, (describing the property,) for ten years or more, last past, claiming the same as his own, and holding a proper title thereto, then he has such title as gives him a right to maintain this action.

2. That if they find from the evidence that plaintiff was, at the commencement of this suit, the owner and in possession of, (describing the property,) and that said lot fronts on Water street, then he is entitled, in law, to the uninterrupted use and enjoyment of said street, and if they further find that he has, by permission of defendant, been deprived of the use of said street, then he is entitled to recover, &c.

3. If they find for plaintiff, the measure of damages will be the difference in the market value of the property immediately before said embankment was placed on the street, and its value immediately afterwards, not exceeding $1,000, taking into account only the damage resulting from the embankment being placed in the street by the authority and permission of defendant.

The following were asked by defendant: 1. The court instructs the jury that the city charter gave to the city council the power and authority, by ordinance, to direct and control the construction and laying of railroad tracks in the streets and alleys of said city, and, to require that the railroad tracks, &c., shall be so constructed and laid as to interfere, as little as possible, with the ordinary travel and use of the streets and alleys, and that sufficient space shall be left on either side of said track for the safe and convenient passage of teams and persons, and to require that said railroad construct, and keep in repair, suitable crossings at intersections of the street, and if the jury find from the evidence that the city council did, by ordinance dated June 3rd, 1872, grant the right of way to said railroad company along said Water street, and that, by provisions of said ordinance the said railroad was required to leave said street in as good condition as when the work thereon began, and also required that, in making excavations upon said street, the established grade thereof be conformed to and observed, and that said ordinance further required said company to construct and keep good and sufficient crossings and passways across and along said street, wherever the same may be required and found necessary, and demanded for public use, then the said city, in permitting the company to construct said road was acting within the limits of its said charter, and cannot be held responsible for the injuries complained of in plaintiff's petition, if the obstructions complained of and if said embankment and railroad iron and ties were placed thereon by said railroad company, and then the jury will find for defendant.

2. The court further instructs the jury that if they find from the evidence that the plaintiff's said fence is situated in said Water street, and if the jury further find from the evidence that by reason thereof the plaintiff's free use of said street is obstructed, and if they further find from the evidence that by the removal thereof, the plaintiff would have sufficient space for the safe and convenient passage of teams and persons between his said property and the said embankment along said street, then the plaintiff's said property is not injured by reason of having his ingress and egress, to and from, interrupted by the said obstructions caused thereby, and defendant is not liable therefor.

3. The court further instructs the jury that this is a civil action for damages, and that the law devolves upon the plaintiff the burden of proving his case to the satisfaction of the jury, by a preponderance...