141 Mo. App. 632 | Mo. Ct. App. | 1910
Plaintiff sued to recover damages resulting from an injury to his property caused by a nuisance set up and maintained in a public street of Kansas City. At the trial,' he dismissed defendant Rosamond A. Scruggs from the action, and proceeded against defendant city. At the conclusion of his evidence, the court peremptorily instructed a verdict for defendant. Plaintiff took a nonsuit, with leave to move to set the same aside, and in due course brought the case to this court by appeal. The facts of the case are as follows:
In 1906, plaintiff owned real property on Grand avenue at Twenty-third street and occupied the place
The doctrine of this rule was approved by this court in Torpey v. City, 24 Mo. App. 288, where, speaking through Philips, P. J., we said: “It presents simply the case where the city stood by and permitted a railroad company, outside of the license given it by the city government, to erect a nuisance on one of its public highways, whereby the natural flow of water was precipitated upon the premises and dwelling-house of an 'adjacent landowner. Its general jurisdiction over the streets, with its corresponding obligation to keep them
Defendant argues that this rule has no application to the present case for the reason that the street in controversy was a mere paper street, and that nothing had been done by the city in the way of opening it to travel, nor had any other species of control over it been exercised by the city.
The rule is well settled with respect to streets dedicated in platted additions that the mere approval by the council of a plat of a proposed addition is in no sense an acceptance of the platted streets as public highways, nor does it cast on the city the duty of keeping such streets in repair. As was said in Downend v. Kansas City, 156 Mo. 60: “Not until the properly authorized city officers do some act evidencing an intention to assume jurisdiction over the street does the obligation of the city to keep it in repair begin and not till then is the city liable for a failure to do so.”
To the same effect is the recent decision of this court in Hedrick v. City, 138 Mo. App. 396.
But it is held in Ely v. St. Louis, 181 Mo. 724, that
But the establishment of a highway by accepted gift or by condemnation, from the very fact that it gives dominion over the street to the municipality to the exclusion of the adjoining property-owners, imposes corresponding duties, with the rights conferred. Proprietorship always carries with it the duty so to use your own as not to injure your neighbor. It lay within the power, and it was the duty, of the city to prevent the erection in the street of a nuisance that would injure the property of an adjoining neighbor. The reason of the rule that would exempt the city from liability to travelers for injuries they might sustain on this street, which was not prepared for travel, is that no invitation, express or implied, was extended to the public to use the street. That reason, and the rule founded on it, fail of application in a case such as the present, where a
The demurrer to the evidence should have been refused. The judgment is reversed and the cause remanded.