Taylor v. City of St Louis

• Decision Date: 31 March 1851
• Citation: 14 Mo. 20
• Parties: TAYLOR ET AL. v. CITY OF ST LOUIS.
• Court: Missouri Supreme Court

14 Mo. 20

TAYLOR ET AL.

v.CITY OF ST LOUIS.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was a petition by appellants, charging that on the 13th day of August, 1846, and on other days in the said month, and in the months of September, October, November and December, the defendant injured the plaintiff as follows that plaintiff was seized of a lot of land and buildings thereon, known as the block No. 175, fronting on an alley in this city, between Ninth and Tenth streets. That defendant wrongfully and illegally graded and paved said alley, which caused plaintiff's land on said alley to cave in, and the buildings to be in danger of falling; to prevent which plaintiffs were put to the expense of placing stone foundations under the buildings, and walling up the sides of the alley, amounting to the sum $1,200. That said grading and paving occasioned a nuisance to the property of plaintiffs, by causing water and offensive matter to collect in the alley, producing exhalations deleterious to he health of plaintiffs' tenants in the buildings, by which plaintiffs sustained damages to the amout of $1,000. That defendant illegally imposed a special tax on the property of the plaintiffs to pay for grading and paving, amounting to $745 94, and exacted the payment thereof from plaintiffs, and claim $2,945 94 in damages.

Defendant answers that she does not admit plaintiffs to be the owners of the property--admits the passing of the ordinance for the grading and paving the alley, and insists on her chartered rights to pave the same, the public interest requiring it. That the ordinance was complied with, and the expense of the grading and paving was legally assessed to the owners of the lots on the alleys, and insists that the work was so done that the defendant was not liable for damages, and that no injury arose from the work. Defendant insists that the accumulation of water and offensive matter in the alley, did not arise from the grading and paving, but because Franklin avenue was not reduced to its proper grade, but had been graded and paved by private persons, with which defendant had nothing to do, and defendant was not responsible to plaintiffs in this action.

On the trial, the plaintiffs offered as evidence to the jury, a plat of Christy's addition to the city, embracing the lots and alleys in controversy, legally made out, acknowledged and recorded, dedicating this alley to the public; also ordinance No. 1751, providing for grading and paving this alley as it was done, and proved that this property was in Christy's possession in 1835, and until his death--that the alley was a nuisance, but in witnesses' opinion was rendered worse after the work was done, and proved by the city register who kept the records, that he had looked and found no ordinance declaring this to be a public alley. Plaintiffs also proved by the administrator of Wm. Christy, deceased, that he had paid for walling up the alley, $770 54. Plaintiffs also proved that the end of a brick house had fallen in consequence of the grading and that the walling done by Christy's administrator was necessary for the support of the houses on the alley. Plaintiffs also gave in evidence the city charters of 1822-31-35-39-41 and 1843, and closed.

Defendant proved by a practical engineer for ten years, that grading and paving was done in 1846-7--that the grade was proper, considering the grade of the adjoining streets; that the work was well done and according to ordinance; that the alley was a nuisance before this work was done, and that Franklin avenue had filled up two feet since the work at the north end of the alley, which caused the water, &c., to accumulate in the alley; that he laid out the work according to ordinance, and that it was indispensably necessary to go up to the line of the buildings, and that it was so properly done. Defendant also proved by a witness that he knew the alley in 1842, and since and before the grading, the nuisance was too bad to lead a horse through it; that he tried for and got the contract, and that at one time, the nuisance was so bad he had to quit the work, and that he knew nothing to compare it to; that he had been engaged at such work for eight years, and he did not know an alley so well done. By another witness, defendant proved that he had superintended the work, and that it was well done according to ordinance, and that the nuisance was never so bad since the work was done as before; that he knew of no objections to the work by Christy's heirs. Defendant gave in evidence the proceeding of the board of health, declaring the alley a nuisance in its unpaved condition. Another witness proved that the work was in progress three or four months; that some of the plaintiffs lived in the city; that N. P. Taylor lived in the country, and often came to town by the way of Franklin avenue, and that he knew of no objection to the work from any of them, and that the proceedings of the city council were published in the city papers. Defendant also gave in evidence ordinance No. 170, with the provisions of the several charters in reference to this subject.

Plaintiffs asked the following instructions: 1. That private property cannot be taken for public use without just compensation, and that this principle governs the State as a municipal corporation. 2. That where an alley is dedicated to the city, the dedication gives a mere easement for the public benefit; the fee simple in the soil remaining in the owners unaffected by the dedication subject only to the right of way 3. That if the city of St. Louis acquired the right of way by dedication, she cannot take the soil either perpendicularly or laterally, to alter such way without compensation, and if in taking the soil the buildings thereon were undermined or injured, the damages occasioned by such taking are direct, and the owner is entitled to indemnification. 4. That as between co-terminous proprietors of land, the right to support is a right of property necessarily practically attached to the soil, and one is not at liberty to make excavations which will draw the lateral support from the land of his neighbor, and cause the falling in of the remaining land. 5. The charter of the city gives no power to the mayor and council to grade an alley not established and opened according to law and ordinance. 6. That all delegated powers are matters of strict construction. 7. That where power is delegated on condition, the condition is part of the power, and unless complied with, the exercise of the power is illegal.

These instructions were not given, but the court instructed the jury, 1. That if they believe from the evidence that a map and plat of Christy's addition was made, acknowledged and certified, and that deposited with the recorder of St. Louis county, that the alley in question was laid down on said map and plat, and that the grading and paving of said alley was executed pursuant to any ordinance of the city of St. Louis, the defendant is not liable for any subsequential injury resulting therefrom, unless the jury believe from the evidence that said injury was caused by the unskillful and negligent execution of the work by the agents and officers of the city. 2. In grading and paving a public alley, the city has a right to go to the line of said alley on either side; it is its duty to execute the work in such manner as is proper, and if any loss o injury is sustained in consequence, the city is not liable for such loss or injury to adjoining property. 3. When an alley or highway is made public, and the fee is conveyed to the county or city, the city or county owning the fee may improve, grade, or repair the same, and any injury to adjoining property for grading the same in a skillful and proper manner, is not an appropriation of private property, for which the owner of said adjoining property can recover in an action against the city. The verdict of the jury was for the defendant, and the plaintiffs have appealed.

THOMPSON,...