226 S.W. 628 | Mo. Ct. App. | 1920
Plaintiff's action is based on the charge that defendant injured his residence property in the city of Trenton by excavating a "cut" between thirty and forty feet in depth and laying railway tracks therein in front of such property though not abutting thereon. He recovered judgment in the circuit court.
It appears that defendant's tracks entered the city of Trenton by way of a deep and long curve and being up grade made it difficult for trains entering the city. To relieve this situation, by straightening the track and reducing the grade, defendant, first securing the vacation of certain streets by the city council, excavated a cut of great depth and length beginning at ____ street running in a northerly direction to ____ street passing near by the front of plaintiff's premises leaving only Chestnut street between him and the excavation.
Plaintiff's property consisted of lots 2 and 3 in block 7, fronting east on Chestnut street and running through to Cedar street in the rear. He was thus left on what the parties called on "Island," lying between the abandoned curve and the new excavation and track, and being out in the residence section of the town, 10 or 12 blocks from the main business center, his access to such business part was cut off except by way of Chestnut street on which he fronted; and direct access to the residence section was cut off east or north except by going two and one-half blocks south and then back a like distance. It will be observed that plaintiff's property was not cut off from other sections of the town, but access to such sections was only made more inconvenient with the excavation than without it.
As we have stated above, plaintiff's property did not abut on the new cut; it abutted on Chestnut street and that street was between it and the edge of the new *613
cut. Nor did plaintiff's property abut on 24th and 25th street, it was "inside" property lying between those streets, but separated from them by other property. Now it is the general rule that the property claimed to be injured by an obstruction to one or more streets must abut on such streets. [Glasgow v. St. Louis,
But there are conditions and situations in which to apply the rule would be a manifest denial of justice; and it is said that an abutting is not "always essential to a recovery. Thus property may not be on the street, yet may communicate with it by means of a private way." [Rude v. St. Louis,
In a recent case in our Supreme Court the case just cited and the quotation we have made is approved. [In re 23rd Street Trafficway, 214 S.W. 109, 118.] In the latter case the court after approving a statement of the law in Downing v. Corcoran,
We think the foregoing justifies us in disapproving the view that plaintiff should not be allowed damages merely for the reason that his property does not abut on an obstructed street. But we think defendant right in the claim that plaintiff is nevertheless not entitled to damages. For damages are not allowed except they be such as plaintiff may suffer which are not common to other property holders similarly affected. That his damages are greater than his neighbors is not sufficient, for that is only a difference in degree. They must be damages peculiar to him and not in common with his neighbors. Now we find from the case as presented by each party, that plaintiff only suffers in common with his neighbors and that while he and they are cut off at points where but for the excavation across distant streets they might have had easier access to certain parts of town, they were not prevented from going to those parts by other ways. The most they suffer is a common inconvenience and for that, damages are not allowed. It is said in Davis v. County Commissioners,
It is practically conceded that plaintiff's instruction permits damages for smoke of passing engines in the new cut and that an instruction for defendant specifically forbid such damages. It being admitted that for defendant was right, plaintiff's should not have been given.
A separate character of damage is claimed by plaintiff on account of draining his well of "living water" situated on his property. Defendant has cited a number of authorities to the effect that injury to a subterranean supply of water by a neighbor excavating for a lawful purpose on his own land isdamnum absque injuria. [New Albany v. Railroad,
The judgment should be reversed and the cause remanded. All concur.