Thompson v. City of Macon

• Decision Date: 04 April 1904
• Citation: 80 S.W. 1,106 Mo. App. 84
• Parties: THOMPSON et al. v. CITY OF MACON et al.
• Court: Missouri Court of Appeals

80 S.W. 1

106 Mo. App. 84

THOMPSON et al. v. CITY OF MACON et al.

Kansas City Court of Appeals. Missouri.

April 4, 1904.

MUNICIPAL CORPORATIONS—STREETS—RAILROAD IMPROVEMENTS — OBSTRUCTION OF STREET— INCONVENIENCE FROM WORK—DAMAGES—PECULIAR INJURY.

1. An occupant of property cannot recover damages for an injury caused by the general scope of an improvement obstructing the streets and causing him inconvenience, even if he suffers more than other property owners or occupants, unless the injury sustained is one special to him, and differing in kind from that sustained by others.

2. A railway has a right to make, and the city has a right to permit it to make, an improvement by lowering its tracks the width of its right of way along the street, through a portion of the city; and, in case the work is not negligently done, an occupant of property abutting the street, who does not suffer any damage by reason of the change of grade, is not entitled to recover, either from the city, from the railroad, or from the construction company engaged in the improvement for injuries caused by reason of the noise, smoke, and soot necessarily caused by the performance of the work.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by William S. Thompson and others against the city of Macon and others. There was a judgment for defendants, from which plaintiffs appeal, and an order granting a new trial against one defendant, from which that defendant appeals. Affirmed on plaintiffs' appeal, and reversed on defendants' appeal.

C. P. Hess, for appellants. Guthrie & Franklin and Dysart & Mitchell, for respondents.

ELLISON, J.

This is an action for damages alleged to have resulted to plaintiffs' property by reason of certain acts charged to have been committed by defendants. The action is against the city of Macon, the individuals composing the street committee of such city, the Chicago, Burlington & Quincy Railroad Company, and the Walsh Construction Company, who are charged to have been joint wrongdoers.

It appears that plaintiffs were the lessees of a building, in which they kept a hotel, in the city of Macon; that the defendant railway passed through said city, from east to west, along the south line of Weed street, and that plaintiffs' property was situated across on the north side of that street; that the railway company desired to make some improvements of its property, which made it necessary to lower its tracks about 20 feet the width of its right of way of 100 feet, through said city, for a space of several blocks (perhaps a quarter of a mile in extent); and that the tracks were lowered that depth opposite to plaintiffs' property. The city, by ordinance, authorized the railway company to lower the tracks as desired, and, in doing so, it seems to have considered that the work would take 13 feet off the south side of the street; and the ordinance provided that the grade of the street should be changed that width to the depth of 20 feet, though, in fact, if such space of 13 feet was a part of the street, it was not in use as such, and was of no benefit or service as a means of access to plaintiffs' property. The ordinance provided that the street should be left 38 feet wide, which was, perhaps, 4 feet wider than as theretofore used. No consent of property owners was obtained, nor were damages ascertained, before passing the ordinance, as is contemplated by section 5855, Rev. St. 1899. The railway company let the entire contract, for lowering the tracks and building a stone retaining wall, to the defendant Walsh Construction Company, and it was the actual work of that company which caused the resulting damage of which complaint is made. Making the excavation to such depth caused the earth to cave or fall in for a considerable distance into the street, more or less along the full length of the cut, which, if left unfilled, would have made the street permanently impassable. To fill these places (one of the longest of which was in front of plaintiffs' building), the Walsh Company laid a temporary track on the north side of the street, close up to the sidewalk, along which it had cars, filled with dirt, pushed by engines. The cars were dumped into the places needing to be filled up to the street level. This track, as the holes would be filled, would be slid over south until the whole surface was leveled up against the retaining wall. The engines thus used in pushing and pulling the dirt cars back and forth made much annoying...