Thurston v. City of St. Joseph

• Decision Date: 28 February 1873
• Parties: EUNICE THURSTON, Appellant, v. CITY OF ST. JOSEPH, Respondent.
• Court: Missouri Supreme Court

51 Mo. 510

EUNICE THURSTON, Appellant,

v.CITY OF ST. JOSEPH, Respondent.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Buchanan Court of Common Pleas.

Everett & Reed, for Appellant.

I. The petition contains facts sufficient to constitute a cause of action. (Blake vs. The City of St. Louis, 40 Mo., 570; Weightman vs. Corporation of Washington, 1 Black, U. S. 39.)

Chandler & Sherman, for Respondent.

Injuries sustained by persons from defects in the streets, for which the city would be liable are limited to injuries sustained within the territory of the street.

The city has no right to go outside of its limits and tamper with the embankments to private property. It cannot, therefore, be held responsible for remote and contingent damages produced by a combination of causes over a part of which at least it has no control whatever. (Sykes vs. Town of Powlet, 43 Vt.)

No active, affirmative wrong is alleged to have been done by the city. The failure of the city is at most a failure to exercise a discretionary power for which the city was not responsible. The city is not liable for failure to prosecute a public work. (Detroit vs. Blakerly, page 670, November 1870 number. Am. Law Reg.

That the city has the right to build the grade of its streets higher than private property, is beyond question. (20 How., 135; 35 Penn., 324; 4 Green, Iowa, 47.)

When the city establishes a system of sewerage and does not require private property owners to conform their drains therewith, and the water from the public sewer overflows, the city is not liable. (8 Allen, 127; 13 Gray, 601; 4 Allen, 41; 1 Denio, 515; 32 N. Y., 489; 4 Penn. St., 364; Dillon Mun. Corp., §§ 799, 802.)

ADAMS, Judge, delivered the opinion of the court.

The main point presented by this record is the liability of a municipal corporation for damages resulting to a lot holder from improvements made under authority conferred by the city charter.

What are the rights of a lot holder in reference to the adjacent streets and alleys? The owner in fee of a tract of land, may have it surveyed into town lots, streets and alleys; and without selling any of the lots or acknowledging the plat, he may destroy the survey and vacate the streets and alleys. But if he convey away any of the lots, the right to the free use of the adjacent streets will pass to the grantees as appurtenant to their lots; and such grantees will not only have a servitude or easement in the adjacent streets and alleys as appurtenant to the lots, but the conveyance itself would be a dedication of the streets and alleys to the public as well as to the private use of the lots. This would be the result without any statutory dedication by acknowledging and filing the plat with the county recorder. The effect of a statutory dedication however, is precisely the same. It vests in the adjacent lot holder, the right to the use of the streets as appurtenant to his lot, and this easement is as much property as the lot itself. It is a property interest, independent of the right of the public to use and improve the streets as public highways, and the lot holder is as much entitled to protection in the enjoyment of this appurtenant easement as he is in the enjoyment of the lot itself. Hence, whatever injures or destroys this easement, is to that extent a damage to the lot. So if in grading a street it be raised so high as to throw the surface water back upon the lot, or prevent a free access to the street; or if the street be excavated so low as to render the easement of no use to the lot, the lot holder is thereby damaged to the extent of the loss of such easement. The qnestion here is whether the lot holder has any remedy at all for such injuries. The case under consideration is a sewer which the city no doubt had the power to construct. But the gravamen of the compliant is that through negligence in the construction of this sewer, water was thrown on the lot of the plaintiff and thereby injured her property. If we are still to follow the rule as laid down in the city of St. Louis vs. Gurno, 12 Mo., 414; and the subsequent cases of Taylor vs. St. Louis, 14 Mo., 20; and Hoffman vs. St. Louis, 15 Mo., 651, we must deny all remedy for such injuries. In the cases referred to, this court followed the lead of the King's Bench in the Governor, &c., vs. Meredith and others, 4 T. R. (D. & E.,) 794. The doctrines laid down in that case by Lord Kenyon and other judges, in my judgment are not applicable to America. The improvements which caused the injury, were made under an act of Parliament which authorized the commissioners to allow damages, but the court seemed to place their decision on the ground that parliament was omnipotent, and on this ground alone denied any remedy to the injured party. The court held that as the improvement was for public convenience, the maxim “““ salus populi suprema lex esto “applied, and that private rights must yield to public convenience. The same line of reasoning was maintained by the learned judge who determined the opinion in the leading case of St. Louis vs. Gurno. In adopting the rule laid down by the King's Bench, he said: “it has long since passed into a maxim, that the safety of the people is the supreme law and, as a corollary from this ancient truth, that individual convenience must yield to the public good.”

Conceding the maxim to be just, the corollary in the comprehensive sense used in England is a non sequitur as applicable to the American States. Our governments are republican, and are instituted for the protection of the people, in their individual rights of persons and property. These rights cannot be invaded as a mere matter of convenience to the public. It is only where the safety of the people is involved, that individual rights can be destroyed to protect the community from impending danger. Thus in great conflagrations, private houses may be torn down or destroyed to stop the fire, and in like manner property of any kind may be destroyed to prevent the spread of contagious diseases.

The destruction of private property in such cases is an overruling necessity and is only a proper application of the right of self-defense which the people as well as individuals may resort to for their own safety. It must, however, be a supreme necessity which authorizes the destruction of private property for the safety of the people. When such necessity in fact exists the maxim “ salus populi suprema lex” will apply and the party whose property is destroyed is without remedy--his loss being “ damnum absque injuria.” But this maxim ought not to be applied to mere matters of public convenience. The improvement of streets, drainage, sewers, &c., are in almost every instance mere matters of public convenience which the city authorities in their discretion are allowed by law to make. They are not matters of supreme necessity involving the safety of the people, and hence this plea is not applicable to the case under consideration.

The city authorities are allowed to establish sewers and to alter them from time to time, and they may establish the grade of streets, and may from time to time alter and re-establish such grades. These powers are not exhausted by their exercise, but are continuing powers. (See Hoffman vs. St. Louis, 15 Mo., 651; Goszler vs. Georgetown, 6 Wheat. (U. S.) 593.) But can such powers be exercised to the injury of private lot holders without paying a just compensation. It is said that lot holders make their purchases and build their houses with a knowledge of these powers in the city authorities and must therefore take the consequences. If they build to an established grade or before any grade is fixed, in either case, under this rule, they must do so at their peril. A lot holder of large fortune may invest it all in a fine edifice, built precisely to an established grade, and the city authorities may as soon as his house is completed alter the grade by lowering it a hundred feet or raising it the same number of feet and thus entirely destroy the appurtenant easement and render his house and lot utterly valueless. After thus being served ought the Courts to be closed against the appeals of the injured lot holder for relief? Is it any consolation to him to hear a lecture read about the necessity of further legislation and to be told that his loss is “ damnum absque injuria,” that he ought to have a remedy, but the political power of the State must be looked to and not the Courts, that the granting of such immense power to a city thus to destroy his property ought to have been so guarded as to have allowed a just compensation for such injury.

This line of argument and advice was tendered as a justification for refusing relief in St. Louis vs. Gurno, and was followed without inquiry in the subsequent cases of Taylor vs. St. Louis and Hoffman vs. St. Louis, ubi supra. The same course of reasoning was pursued by the Courts of New York, Pennsylvania and Massachusetts, relied on as authorities in St. Louis vs. Gurno. (See Wilson vs. City of New York, 1 Denio, 595; 4 Serg. & R., 514; 9 Watts, 382; Callender vs. Marsh, 1 Pick., 418...