Carroll v. City of Marshall, 99 Mo. App. 464

Carroll v. City of Marshall

99 Mo. App. 464 | Mo. Ct. App. | 1903

ELLISON, J.

Plaintiff is the owner of several lots in the city of Marshall, Missouri, along the front *467of ■which, the city raised the grade of the street so as to leave the lots below the level of such street. He brought this action for damages to such property and failed in the trial court.

It appears that the street was not only graded, but was also macadamized and curbed. The court gave an instruction for defendant wherein it was declared that the fact the street was a graded and macadamized street with curbs and gutters, could be taken into consideration by the jury as benefits to plaintiff which should be deducted from his damage. Plaintiff objects to the instruction. Pie says in support of his objection that he had already paid for the grading, paving and curbing; or would, under the law, be compelled to pay for it through special taxbills issued for such improvements. That if such grading, paving and curbing is to be now charged against his damage, it will be forcing him to a double payment. We believe the objection to be sound. The cost of specific improvement which has been paid for by a property-holder ought not, in justice, to be set off against his loss by reason of damage to his property. That benefit, up to the amount of the cost thereof, has been settled by the property-owner himself, and the city has no right to use it as an offset to his claim for damages.

But we think it would be going too far to say that such improvements are not to be considered at all. Grading, paving and curbing a street may, and frequently do, benefit the abutting property largely more than the cost of the work and material evidenced by the taxbill which the property-owner pays. The instruction ought to have been so worded that the only benefit to be allowed against plaintiff’s damage would be that which was in excess of what such improvements had cost him by reason of the special assessment therefor. If the benefit did not exceed the cost, then no benefit would be counted against him in estimating the damage.

*468An expression is used in Neenan v. Smith, 50 Mo. 529, that special'assessments for local improvements are had '“to pay for the benefits which they are supposed to confer.” This expression is quoted by Judge Valdiant, in Thornton v. City of Clinton, 148 Mo. 663. But it was not meant by that expression that the special assessment paid for the whole benefit in such sense as to be applicable here. It only pays for that portion of the benefit which is represented in the cost of the benefit, that is to say, the cost of the improvement.

The judgment is reversed and the cause remanded.

All concur.