Thompson & Son v. City of Macon

• Decision Date: 04 April 1904
• Citation: 80 S.W. 1,106 Mo.App. 84
• Parties: THOMPSON AND SON, Appellant and Respondent, v. CITY OF MACON et al.; WALSH CONSTRUCTION CO., Respondent and Appellant
• Court: Kansas Court of Appeals

80 S.W. 1

106 Mo.App. 84

THOMPSON AND SON, Appellant and Respondent, v. CITY OF MACON et al.; WALSH CONSTRUCTION CO., Respondent and Appellant

Court of Appeals of Missouri, Kansas City

April 4, 1904

Appeal from Macon Circuit Court,--Hon.Nat M. Shelton, Judge.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Charles P. Hess for plaintiffs.

(1) The city of Macon is a city of the third class.Its powers and duties are defined by statute.R. S. 1899, secs. 5855, 5861 5864, 5867;Dry Goods Co. v. Railway,41 Mo.App. 63.(2) Conceding then the city passed an ordinance to change the grade of Weed street, it became liable for all damage thereby occasioned to the abutting landowners, regardless too of the question whether the work was done in a careful or in a negligent manner.McIntire v. Telephone Co.,75 Mo.App. 535;Walker v. Sedalia,74 Mo.App. 70.The city is liable although there was no evidence that the grade of Weed street was established by an ordinance prior to the ordinance changing the grade.Davis v. Railway,119 Mo. 180;Hickman v. Kansas City,120 Mo. 120;Smith v. Railroad,98 Mo. 20.(3) The city could not confer a greater authority upon the railroad company or the Walsh Construction Company than it itself possessed, hence they are both liable.Sheehy v. Cable Co.94 Mo 575;Cross v. Railway,77 Mo. 318;Martin v Railway,47 Mo.App. 452;Hulett v. Railway80 Mo.App. 87;Davis v. Railway,119 Mo. 180.(4) The city as well as the railroad company is liable for nuisance.Torpey v. Independence,24 Mo.App. 288;Russel v. Columbia,74 Mo. 480;126 Mo. 324;Berkson v. Railroad,144 Mo. 217.(5) A city may by ordinance direct a street to be graded.If it proceeds with the work and damages property without first taking steps to ascertain and pay such damages, it is a trespasser, and those actively participating in the work by directing it are cotrespassers.Rives v. Columbla,80 Mo.App. 173;Householder v. Kansas City,83 Mo. 494;Dry Goods Co. v. Railroad,41 Mo.App. 65;Carson v. St. Joe,91 Mo.App. 328.(6)Plaintiffs charge that the defendants created and maintained a nuisance.Under the pleadings all the defendants are liable.Carson v. Springfield,53 Mo.App. 289;Smith v. Railway,98 Mo. 20;Hulett v. Railway,80 Mo.App. 89;Paddock v. Somes,120 Mo. 226;Torpy v. Independence, supra;Foncannon v. Kirksville,88 Mo.App. 282;Berkson v. Railroad,144 Mo. 217;Reed v. Guitar & Watson,163 Mo. 333.The defendant railroad company received no authority under the ordinance to lay a railroad track and operate a steam railroad on Weed street.A railroad in a street without municipal authority is a public nuisance.Sherlock v. Railway,142 Mo. 172;St. Louis v. Kirkwood,159 Mo. 239.The court erred in sustaining demurrer to plaintiffs' evidence against the railroad company; the contract in evidence clearly shows that the Walsh Construction Company was not an independent contractor.And if so the railroad company is nevertheless liable.Woodmon v. Railroad,149 Mass. 338;3 Elliott on Railroads, secs. 1063, 1064;Independence v. Slack,134 Mo. 75;Grenshaw v. Ullman,113 Mo. 638;Ullman v. Railroad,67 Mo. 118.Rights of plaintiffs to sue: "Private property shall not be taken or damaged for public use without just compensation."Constitution, State of Missouri, art. 2, sec. 21.The meaning of the word property is defined by statute."The word property shall include real and personal property."Eleventh subdivision of sec. 4160, R. S. 1899."The term real property, or premises, or lands shall be deemed to be coextensive with lands, tenements and hereditaments."Ninthsubdivision, R. S. 1899, sec. 4160.Plaintiff can sue for damages to leasehold interest.1 Sedgwick on Damages (8 Ed.), 91, 93;Seely v. Alden,100 Am. Dec. 642;Reed v. Price,30 Mo. 442;Pause v. Atlanta,58 Am. State 290;Brunswick v. Hardey,52 L. R. A. 396;McKee v. Railway,49 Mo.App. 175;Brown v. Bowen,30 N.Y. 519;Reed v. Price,30 Mo. 442;Dry Goods Co. v. Railway,41 Mo.App. 77.All parties participating in a tortious act are liable in damages.Pollock on Torts, 231;Wood on Nuisances, sec. 821, 824, 825;Paxton v. State,80 Am. State 689;Berkson v. Railroad,144 Mo. 217.Plaintiffs in their petition aver that they have sustained special damages and the evidence supports them."So the law is quite well settled that the property-owner must show, to entitle him to recover damages in an obstruction to a highway, that the damages are peculiar to him, different in kind and not merely in degree, from those suffered by other members of the community."Rude v. St. Louis,93 Mo. 408;Bailey v. Culver,84 Mo. 531;Venard v. Gross,8 Kan. 254;Notes to Fritz v. Hobson,19 Am. Law Register 624.What are special damages: 41 Mo.App. 63;Schoen v. Kansas City,65 Mo.App. 138;Gains v. Vanstiddiford,86 Mo. 149;Francis v. Schellkoph,53 N.Y. 153;Rude v. St. Louis, supra;Quiler v. Springfield,30 Mo.App. 676;Werth v. Springfield,78 Mo. 110;Fritz v. Hobson,19 Am. Law Register 615 (1880);Note to foregoing case, 19 Am. Law Register 624;Imlen v. Springfield, supra;Pimey v. Berry,61 Mo. 365.When the obstruction complained of is immediately in front of plaintiffs' premises, so as to prevent access thereto, the tendency is to allow a private action where otherwise it might not be sustained.

Guthrie & Franklin with Dysart & Mitchell for defendants.

(1)The Burlington Railroad Company can not be held liable for injuries naturally resulting to an adjacent proprietor by reason of improvements made on its right-of-way.Moss v. Railway,85 Mo. 86;Abbot v. Railway,83 Mo. 271;Jones v. Railway,84 Mo. 151.(2) There was authority of law, to-wit, the ordinance; there is no proof of intentional wrongdoing or of negligence.The work was speedily and scientifically done so far as the grading down is concerned, and in fact all of it.(3) The grading and other work was done by the Walsh Construction Company under contract.Where there is an independent contractor the other party is not liable.Blumb v. Kansas,84 Mo. 112;Dillon v. Hunt,82 Mo. 150;Fink v. Furnace Co.,82 Mo. 276;Independence v. Slack,134 Mo. 66;Crenshaw v. Ullman,113 Mo. 633;McKinley v. Railway,40 Mo.App. 449;Weise v. Remme,140 Mo. 289;The Noranmore, 113 F. 367;The Indrani, 41 C. C. A. 511;S. C., 101 F. 596.(4) An abutting owner has the right to use the street in his front for the purpose of making improvements on his property.Nagel v. Railway,167 Mo. 89;Cummins v. Seymour,79 Ind. 491;S. C., 41 Am. 618;Wood v. Mears,12 Ind. 515;S. C., 74 Am. Dec. 222;Clark v. Fry,8 Ohio St. 358;S. C., 72 Am. Dec. 590;Welsh v. Wilson,101 N.Y. 254;S. C., 54 Am. 698;People v. Horton,64 N.Y. 610.(5)Plaintiffs can maintain no action for the cutting down of the alleged south edge of Weed street since access to and from his property was not materially interfered with thereby, the street being thirty-eight feet wide and connecting with all other streets as formerly.Knapp v. St. Louis,156 Mo. 343.A city has absolute control of its streets and may decide to which of the various public uses the different parts thereof may be put, and is only bound not to materially interfere with the abutting property-owners' egress and ingress.If his access is not materially interrupted he has no more interest than any other citizen.State ex rel. v. Murphy,130 Mo. 10;Springfield v. Railroad,69 Mo.App. 514;Railway v. Eberly,110 Ind. 541;S. C., 59 Am. 225;East St. Louis v. O'Flynn,119 Ill. 200;S. C., 59 Am. 795;Dantzer v. Railway,141 Ind. 604;S. C., 50 Am. St. 343;Knapp v. Railroad,126 Mo. 26;Lumber Co. v. Railroad,129 Mo. 455;Brown v. Railroad,137 Mo. 529;Knapp v. St. Louis,153 Mo. 560;Knapp v. St. Louis,156 Mo. 343.It is a question of access, and the fact that the obstruction makes the access more difficult or more circuitous is immaterial if the access remains.(6) The city council had authority to appropriate a part of the street to any particular public use, such as approaches to the grounds of a public carrier like a railroad, and the abutting proprietor on the other side of the street can not complain as long as the access to and from his premises is not materially interfered with.Penn Co. v. Chicago,181 Ill. 289;Knapp v. St. Louis,153 Mo. 560;Kossman v. St. Louis,153 Mo. 293.(7) The uncontradicted evidence shows the line between Weed street and the Burlington right-of-way was at the south curb of the macadam on the street.That this was thirty-two feet south of the building line.The ordinance requires that the street be left thirty-eight feet wide, and there is no complaint that it was not so left either in the pleading or the evidence.If this be true, the work was all done on the right-of-way of the Burlington company.The Burlington company had a right to dig down its right-of-way as deep as it pleased.Charless v. Rankin,22 Mo. 566.An independent contractor doing the work for it becomes liable only when he is negligent.Larson v. Railway, 110 Mo. 234.

Dysart & Mitchell for appellant, The Walsh Construction Company.

(1)The court erred in sustaining plaintiff's motion to set aside the nonsuit and in granting a new trial as to the Walsh Construction Company.The court was right in sustaining the demurrer to plaintiff's evidence as to the other defendants, and for the same reason the demurrer should have been sustained as to the Walsh Construction Company.(2)The plaintiff's petition does not state facts sufficient to constitute a cause of action and defendants' objection to the receiving of any evidence in support thereof should have been sustained.R. S. 1899, sec. 593;Doan v. Hally,25 Mo. 357;Stalcup v. Garner,26 Mo. 72;Robinson v. Rice,20 Mo. 229;Mertens v Lowenberg,69 Mo....