Van De Vere v. Kansas City

• Decision Date: 23 November 1891
• Citation: 107 Mo. 83,17 S.W. 695
• Parties: VAN DE VERE v. KANSAS CITY et al.
• Court: Missouri Supreme Court

17 S.W. 695

107 Mo. 83

VAN DE VERE v. KANSAS CITY et al.

Supreme Court of Missouri, Division No. 1.

November 23, 1891.

INJUNCTION — ERECTION OF FIRE-ENGINE HOUSE — COMPENSATION — NUISANCE.

1. A lot-owner cannot have a city enjoined from erecting a fire-engine house on an adjacent

lot until compensation is made for the anticipated depreciation of his property in value in consequence of the noise and bustle incident to such structures, where no direct and special damage is shown.

2. A fire-engine house in a city is not a nuisance.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge. Reversed.

Bill in equity by Madison Van de Vere against Kansas City et al. to enjoin the erection of a fire-engine house on a lot adjoining one owned by complainant. From a decree for complainant, respondents appeal.

F. F. Rozelle, W. S. Cowherd, and F. H. Dexter, for appellants. Karnes, Holmes & Krauthoff, for respondent.

BLACK, J.

Plaintiff is the owner of two lots on Brooklyn avenue in Kansas City, and the defendant city is the owner in fee of a lot adjoining the plaintiff's lots. After the city had let a contract and commenced the construction of a fire-engine house upon the lot owned by it, the plaintiff commenced this suit, praying for an injunction. The circuit court found that the plaintiff would be greatly damaged by the use of the building for a fire-engine house, and enjoined the city and the contractors from proceeding with the work until compensation should be made to the plaintiff for such damage. From that decree the city appealed.

The plaintiff produced evidence to the following effect: That his lots are suitable for residence purposes only; that a number of residences had been erected in the immediate neighborhood; that he had in contemplation the erection of a residence on his lots; and that his property would be decreased in value from 35 to 50 per cent. by the erection of this building of the city, — one witness says to the amount of $2,500. The evidence of three physicians is that the noise and commotion incident to such a structure would be uncomfortable and annoying to persons living in adjoining houses, and might have a damaging effect upon their nervous systems. These same witnesses say that other property on the same street and in the same block would also be injured, but not to the same extent. On the other hand, a physician of 25 years' standing testified that he owned and resided on property next to one of these engine-houses, and that his property was not depreciated in value nor was the health of his family affected thereby. Another witness gave evidence to the same effect. The proposed structure is to be set back 10 or 15 feet from the street line. It is designed for one hosewagon, a span of horses, and five men. The alarm apparatus consists of a gong, with telephone attachments. Fire-bells are not used, but the alarms are loud enough to awaken the men.

1. An examination of the evidence leads us to the conclusion that the damages are over-estimated by some of the witnesses; but for all the purposes of this case it will be assumed that the plaintiff's property will, to some extent, be depreciated in value by the erection of the fire-engine house and the use of the same for the designed purpose. Our constitution of 1875 [article 2, § 21] declares "that private property shall not be taken or damaged for public use without just compensation." The same clause in prior constitutions did not contain the word "damaged;" and the first question is whether the change in the organic law secures to the plaintiff compensation for the damages which he will sustain under the circumstances of this case. Previous to the constitution of 1875 a very restricted meaning had been given to the words "taken" and "property." Thus it was held in St. Louis v. Gurno, 12 Mo. 415, and affirmed in Taylor v. St. Louis, 14 Mo. 20, that the city was not liable in damages resulting to a property owner from grading and paving a street, where the work was done under an ordinance authorized by the charter. The reason assigned was that to grade a street dedicated to public use was not the appropriation of private property to public use, but simply the exercise of a lawful power over what had become public property, and that the property owner had no remedy for such consequential damages. And in Hoffman v. St. Louis, 15 Mo. 651, the same rule was applied where the grade of the street had been changed. The rule of these cases was disapproved in Thurston v. City of St. Joseph, 51 Mo. 510; but in the case of Schattner v. City of Kansas, 53 Mo. 162, the court returned to the old doctrine, and so the law continued down to the adoption of the constitution of 1875. The only exceptions were in those cases where the city charters or authorized ordinances prescribed a different rule. Cooley, in speaking of what would constitute a taking, says: "Any proper exercise of the powers of government, which does not directly encroach upon the property of an individual or disturb him in its possession or enjoyment, will not entitle him to compensation, or give him a right of action." Cooley, Const. Lim. (5th Ed.) 671. And it is said in Transportation Co. v. Chicago, 99 U. S. 635: "Acts done in the proper exercise of governmental powers, and not directly 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 any right of action." Such were the rulings under former constitutions. The eminent domain clause was amended, so as to include cases where property is "damaged" as well as "taken," to overcome the hardship growing out of the old rules; and what we are at...