53 Mo. App. 289 | Mo. Ct. App. | 1893
— Section 21, of article 2, of the State Constitution, provides: “That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into the court for the owner, the property shall not be disturbed, or the proprietary rights of the owner therein divested.”
For the purpose of enforcing this constitutional provision in certain cities, wherein private property should be needed for public use, or it became necessary to grade or regrade any street, or to change the grade thereof, by which private property would' be damaged, the legislature has provided a mode for ascertaining such damages (sections 1815, 1820 of the Revised Statutes of 1889). Section 1821 of the statutes provides that, when the authorities of the city have graded or regraded or changed the grades or lines of any street or alley, to the damage of any owner of land, and such improvement has been made without the consent of such owner, and the damage has not been agreed on or ascertained in the manner above provided, such owner may institute an action at law against the city to ascertain and recover the amount of damages caused by such improvement. These provisions of the statute apply to cities of the third class.
The plaintiff is and was at the times hereinafter mentioned the owner of a lot in the city of Springfield, a city of the third class, which lot is situated at the northeast corner of St. Louis and Jefferson streets, fronting ninety-four (94) feet on the south side of St. Louis street, and extending south one hundred and seventeen and one half (117 1-2) feet along the east
In the second count of the petition, which is authorized by section 1821 of the statute, the plaintiff seeks to recover the damages resulting to his property from the change in the grades of the streets. The first count is based on the negligent acts of the defendant in that, at the time the improvements were made on Jefferson and St. Louis streets, the defendant so graded and guttered these streets, and other streets immedh ately west and south of the plaintiff’s property, as to collect the surface water from a large area into the gutters in front of the plaintiff’s premises, and that by reason of the insufficiency of the gutters on both sides of Jefferson street, and on the east side of St. Louis street, large quantities of water, dirt and sand were discharged into the plaintiff’s premises to his great injury.
There are many errors complained of, which pertain to the instructions given and refused, and to the admission and rejection of evidence. Under the view which we have taken of a controlling question, it will not be necessary to notice the assignments in detail.
It will be observed that the plaintiff sues for two kinds of damages, one for raising the grade of the street in front of his property, and the other for flooding his lot and buildings with surface water. Prior to the adoption of the constitution of 1875, a municipal corporation was not liable to an abutting owner of land for damages resulting from a change in the grade of a street. Such damages were regarded as damnum absque injuria. It was only where such work was negligently done that the owner could recover anything. Foster v. City, 71 Mo. 157. Now all damages to private property, which result from a change in the grade of a street, must be paid by the municipality. This has been held to be “the taking or damaging of private property for public use,” within the meaning of the Constitution. Werth v. City of Springfield, 78 Mo. 107; Householder v. City of Kansas, 83 Mo. 488. As the defendant did not dispute that the grades on St. Louis and J'efferson streets were changed as alleged, and that the plaintiff’s damage had not been agreed on or ascertained in the manner provided by law, the plaintiff’s right of action under the second count was placed beyond dispute, and it was only necessary to ascertain the damages which were directly attributable to the change in the grades of the streets.
The evidence was also sufficient to establish the cause of action stated in the first count. A city is not liable for the incidental change of the flow of surface
The injury done to the plaintiff’s property by reason of the change in the grade of the streets must be considered as permanent and entire, and for the recovery of which but one action is necessary. Sheehy v. Cable Road, 94 Mo. 574; Babb v. Curators, 40 Mo. App. 173; Givens v. Van Studdiford, 86 Mo. 149; James v. City of Kansas, 83 Mo. 567; Bird v. Railroad, 30 Mo.
When the nuisance or cause of the injury may be removed or remedied at any time, the measure of damages is the actual damage sustained up to the date of the institution of the suit. Damages accruing subsequently must be recovered in successive actions. Pinney v. Berry, 61 Mo. 360; Brown v. Railroad, 80 Mo. 457; Smith v. Railroad, 98 Mo. 20; Paddock v. Somes, 102 Mo. 239; Van Hoozier v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 575; Benson v. Railroad, 78 Mo. 504.
In the case of Pinney v. Berry, supra, the plaintiff sued for damages for overflow of his farm, caused by the erection of a dam by the defendant. The court held that the dam was a temporary structure which might and could be removed at any time, and that the proper measure of the plaintiff’s damage was the loss in the rental value, and not the difference between the
The same rule was announced in Brown v. Railroad, supra, where the plaintiff sued for damages for the overflow of his farm, caused by the construction of a dam by the defendant across Beaver Dam fork of Salt river.
So, in Smith v. Railroad, supra, where it appeared that the location of the railroad track on the street was temporary, the plaintiff’s damage was confined to that actually sustained, including any diminution of rentals, to the time of the institution of the action.
In Paddock v. Somes, supra, the plaintiff sued for damages to his lot by reason of water and sewage discharged thereon by means of a sewer pipe constructed by the defendant. The measure of damage was held to be that actually sustained.
The cases of Van Hoozier v. Railroad, Dickson v. Railroad, Benson v. Railroad and McKee v. Railroad, 49 Mo. App. 174, were suits for damages for the overflow of land. It was decided in all of these cases that ; such wrongs or injuries do not involve the entire destruction of the estate, or its beneficial use, but may be . apportioned from time to time, and that the recovery must be confined to the damage actually sustained at the date of the institution of the suit. This seems to be the rule in overflow cases, regardless of the character of the obstruction or the cause of thé damage.
It is quite evident that the cause of the overflow of the surface water upon the plaintiff’s lot is of a temporary character, and it could be easily remedied by • constructing a suitable underground drain north across St. Louis street, or by increasing the size of the gutters in front of the plaintiff’s property. Therefore, the ■ plaintiff’s measure of damages on this branch of the ■ case is the actual damage sustained at the date of
It is not necessary to notice other assignments, as they are mere accidents of the trial, and are not likely to occur again. The judgment will be reversed, and the cause remanded.