Tegeler v. Kansas City

• Decision Date: 02 June 1902
• Citation: 95 Mo. App. 162,68 S.W. 953
• Parties: TEGELER et ux. v. KANSAS CITY et al.
• Court: Missouri Court of Appeals

68 S.W. 953

95 Mo. App. 162

TEGELER et ux. v. KANSAS CITY et al.

Court of Appeals at Kansas City, Missouri.

June 2, 1902

MUNICIPAL CORPORATIONS — STREET IMPROVEMENT — GRADING — INJURY TO ABUTTING PROPERTY — ACTION FOR DAMAGES — MEASURE OF DAMAGES.

1. Plaintiffs' lot was level, except for about 10 feet in the rear, where the ground rose rapidly towards an alley. At the foot of this grade, on their own lot, and about 12 feet from the alley line, plaintiffs built a fence. Thereafter the defendant city ordered the grading of the alley, the specifications calling for an eight-foot fill in the rear of plaintiffs' lot; and, in making this fill, the contractor filled in with dirt and clay the space between the fence and alley, a portion of the fence being knocked down and covered up. Held, that the injury being direct, and a trespass on plaintiffs' property, and not merely incidental to the improvement, plaintiffs could recover damages.

2. The injury being permanent, the measure of damages was the difference between the market value of the property immediately before the injury and its value after the injury was complete, unless the reasonable cost of restoring the property to its former condition was less than such difference, in which case such cost was the proper measure.

Appeal from circuit court, Jackson county; E. P. Gates, Judge.

Action by H. B. C. Tegeler and wife against Kansas City and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

L. A. Laughlin, for appellants. C. E. Burnham and Geo. N. Elliott, for respondents.

SMITH, P. J.

Plaintiffs are husband and wife. The latter is the owner of a lot of land having 46 feet frontage on the west side of Forest avenue, and extending back about 150 feet to the alley. Plaintiffs' lot is level, except for about 10 feet in the rear. At this point the ground commences to rise rapidly. There is a two-story house on the property, having nine rooms. The wife purchased the property in 1896. A year or two later, in conjunction with the owner of the property on either side, plaintiffs built a board fence across the rear of their lot, about 12 feet inside of the alley line, and about at the base of the slope. The city passed an ordinance to grade the said alley. On January 27, 1900, the city entered into a contract with the defendant William Trehey to grade the alley, which was performed by him. The specifications under which the alley was graded called for a fill of seven or eight feet in the rear of plaintiffs' lot on the line of the alley. In doing the grading, the contractor filled the space between the fence and alley line with dirt, and some of the fence was knocked down and covered up with dirt. Plaintiffs brought this suit for damages for the cost of removing the earth, rebuilding the fence, and erecting a retaining wall. They introduced evidence at the trial on these points, and also as to the diminution in the market value of the property. The court instructed the jury that they should allow as damages the diminution in the market value of the property, unless they found the cost of removing the dirt and building the retaining wall would be less, in which case the latter should be the measure of damages. The jury returned a verdict in favor of the plaintiffs. After an unsuccessful motion for new trial, the defendants have appealed to this court.

The only question raised by defendants' appeal is as to the propriety of the action of the trial court in giving for plaintiffs the instruction just alluded to. In 2 Dill. Mun. Corp. § 990, it is stated "that the courts by numerous decisions, in most of the states, have settled the law that municipal corporations, acting under authority conferred by the legislature to make and repair, or to grade, level, and improve, streets, if they keep within the limits of the street, and do not trespass upon or invade private property, and exercise reasonable care and skill in the performance of the work, are not answerable to the adjoining owner whose lands are not actually taken, trespassed upon, or invaded, for consequential damages to his premises, unless there is a provision in the charter of the corporation or in some statute creating liability." And in Northern Transp. Co. v. City of Chicago, 99 U. S. 639, 25 L. Ed. 336, it was said that: "Acts done in the exercise of governmental powers, and not encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking, within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him a right of action." But the action here is not for consequential damages, but for a direct and positive injury. The contractor of the city doing the work did not keep within the limits of the alley. He trespassed upon and invaded the private property of the plaintiffs. In Broadwell v. Kansas City, 75 Mo. 213, 42 Am. Rep. 406, — a case in its salient facts very similar to this, — it was said that "section 16,...