Westliche Post Ass'n v. Allen

• Decision Date: 17 May 1887
• Parties: WESTLICHE POST ASSOCIATION, Respondent, v. W. R. ALLEN ET AL., Appellants.
• Court: Missouri Court of Appeals

26 Mo.App. 181

WESTLICHE POST ASSOCIATION, Respondent, v. W. R. ALLEN ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the St. Louis Circuit Court, W. H. HORNER, Judge.

Affirmed.

LEONARD WILCOX, for the appellants: The instructions for non-suit and instruction numbered seven should have been given. City Charter, art 6, sect. 18; 2 Rev. Stat, 1608; Rev Ord. 1881, sects. 1 and 3, p. 529; Partridge v Gilbert, 15 N.Y. 612; Keokuk v. Keokuk, 53 Iowa 354; Oliver v. Kansas City, 69 Mo. 79, 83; Julia Building Ass'n v. Bell Tel. Co., 88 Mo. 271-2; 23 Mo.App. 477, 481; Werth v. Springfield, 78 Mo. 108 111. The use made of the sidewalk by the defendants was a lawful and reasonably necessary use thereof. Clark v. Fry, 8 Ohio St. 373-4; Angell on Highways (3 Ed.) sects. 241, 312; Dillon on Mun. Corp. (3 Ed.) sects. 688, 699. And the plaintiff's alleged damage was damnum absque injuria. Wood on Nuisance, sect. 880, p. 1014; Washburn on Easements (4 Ed.) sect. 433, p. 585; Thurston v. Hancock, 12 Mass. 236 (side p. 229). It was the duty of the plaintiff, whether the construction of the vault was lawful or otherwise, so to cover it that the sidewalk would be as fit and safe for every proper public use as if it had not encroached on the street. Julia Building Ass'n v. Bell Tel. Co., 88 Mo. 271-2; Dillon on Mun. Corp. (3 Ed.) sect. 1032: Pontiac v. Carter, 32 Mich. 165, 171; Partridge v. Gilbert, 15 N.Y. 612. Taking the plaintiff's evidence as true, it appears that it knew, before the blocks were placed on the sidewalk, that the vault covering was insufficient to support the weight of the blocks; it was, therefore, its duty to guard against the injury threatened, which, it admits, it did not do. Douglass v. Stephens, 18 Mo. 366; Dill. on Mun. Corp. (3 Ed.) sect. 1044; Stewart v. Clinton, 79 Mo. 614; Partridge v. Gilbert, 15 N.Y. 612; Munkres v. Railroad, 72 Mo. 514; Pontiac v. Carter, 32 Mich. 171; Harrison v. Railroad, 88 Mo. 627.

PAUL F. COSTE, for the respondent: The plaintiff had a property in the paving material, constituting the sidewalk in front of its premises, and laid at its own expense; for the reasons, that it had already paid for it, and was bound to maintain it in good order, at its own expense, under Revised Ordinances, 1881, chapter 15, article 1, section 3, and chapter 15, article 5, section 3. Muzzy v. Davis, 54 Me. 361; 2 Waterman on Trespass, 41. The question of title to the street does not affect the right to recover in this case. It is unnecessary to cite authorities on this point, as the plat referred to, has already been before this court in the case of Julia Building Ass'n v. Bell Telephone Co. (23 Mo.App. 481). Julia Building Ass'n v. Bell Telephone Co., 88 Mo. 271.

OPINION

THOMPSON J.

The plaintiff, a corporation, and the owner of a lot situated on the corner of Broadway and Market streets in the city of St. Louis, complains of the defendants, who were contractors for reconstructing the street fronting the plaintiff's premises, of so negligently piling granite blocks on certain flagging stones of the sidewalk, as to crack and otherwise injure them, to the plaintiff's damage, in the sum of $464.10.

The defendant's answer avers, in substance, that the locus in quo is a part of a street of the city of St. Louis, duly dedicated; that the plaintiff, and those under whom the plaintiff claims, had made an excavation under the public sidewalk of said street, without lawful authority from the city, and failed to provide sufficient support for the flagging covering it, for the lawful uses of said street; that the defendants were contractors with the city for reconstructing the street with granite blocks; that their contract with the city provided, among other things, the following:

" On the day designated by the street commissioner for the commencement of said work, at any point or points, on the line thereof, the contractors shall, before disturbing or making any alteration in the present roadway, haul upon the line of the work, at each of said points, a sufficient quantity of stone blocks for the paving of at least the space between any two intersecting streets. * * * The contractor will * * * be required to pile such stones as may have been approved, neatly on the front of the sidewalk, and not within three feet of any fire hydrant, and in such manner as will preserve a sufficient passageway on the line of the sidewalks, and, also, permit of free access from the roadway to each house on the line of the street. After this inspection has been made, and after all the rejected stones have been removed entirely from the line of the work, and the accepted stones piled in the manner aforesaid, and not until each of these conditions shall have been faithfully fulfilled, will the contractor be permitted to proceed with the preparation of the roadway, for the new pavement."

The defendants further aver that the use of the street and sidewalk mentioned in the foregoing provision of the contract, was a lawful use thereof by the city, and the defendants, under the city; that they pursued it strictly, and with care; that they had no notice of the insufficient support of said sidewalk flagging, while the plaintiff had notice of the beginning of the work, under the defendants' contract with the city; that if any injury was caused to the plaintiff, it was due and owing to the fact that the flagging was insufficient to support the rock, which might be, and was, lawfully piled upon it, in the necessary and lawful use of the street, and not to any negligence on the defendants' part in piling said rock.

The plaintiff, in its reply, denies that the granite blocks, mentioned in the answer, were properly piled and distributed on the sidewalk, and asserts that an undue proportion of the blocks was placed on the plaintiff's sidewalk, and that the same were negligently cast and thrown there by the defendants with great force and violence, and denies that they were piled there, either by the direction of the street commissioner, or in obedience to the provisions of the contract.

The plaintiff, also, denies that the piling of said blocks upon said sidewalk, in said manner, was a lawful use of said sidewalk, and asserts that the defendants had full notice of the existence of the vault under the sidewalk, and of the manner in which the vault was arched, and of the manner in which said sidewalk was supported, and of the weight which said sidewalk could bear, and the plaintiff asserts that said sidewalk had sufficient support for all the lawful uses thereof.

The trial was had before the court, sitting as a jury, and resulted in a judgment for the plaintiff, from which the defendants appeal.

Some stress is laid on the fact, by the petition, and by an instruction, given on behalf of the plaintiff by the court, that the plaintiff was owner of the land, covered by the street, in fee. This fact, in itself, is of very little importance, except in so far as it bears upon the lawfulness of the plaintiff's vault beneath the sidewalk. The evidence, as well as the defendants' instructions, substantially concede the lawfulness of that occupancy. That, of itself, in no way affects the rights of the city to use either the surface, or the underlying portion of the street, for any lawful purpose for which a street may be used.

In the case of Julia Building Association v. Bell Telephone Company (88 Mo. 267), Judge Norton, in delivering the opinion of the majority of the court, says: " Where one claims land as being part of a street adjoining the premises described in his...