205 Mo. 126 | Mo. | 1907
The plaintiffs instituted this suit against the defendant, in the circuit court of Clay county, to recover damages for injuries done their property, caused by cutting and otherwise mutilating ornamental and shade trees, growing along the sidewalk, near the curb line, in front of their dwelling, on one of the public streets of the city of Liberty.
The petition for cause of action alleged, substantially, that the defendant was a corporation, organized and , existing under and by virtue of the laws of the State of Missouri; that on September 10, 1903, and prior thereto the plaintiffs owned and were in possession of the property (describing it), and that it had been improved by the erection of a good dwelling thereon, reasonably worth the sum of $4,500, and had been further improved by setting out shade trees, along the pavement in front of said lots, which had grown to be large trees and served to both beautify said property, and to protect the said dwelling house, which fronted west, from the west sun, which added greatly to the comfort and enjoyment of said dwelling; that said trees .were located along the pavement, between the center line of the street and the said dwelling aforesaid, and were the property of the plaintiffs. That on September 10, 1903, the defendant, by its agents, officers and servants, acting within the line of their employment, wilfully and wrongfully cut and mutilated the tops and branches of said trees, thereby destroying their beantv and the shade and the comfort they afforded those in the occupancy of said dwelling; that
The answer virtually admitted all the allegations of the petition, excepting the damages. It alleged that the limbs and branches of said trees were in the line of and obstructed its cable and interfered with its telephone service to the public; that said limbs and branches had grown up and pressed against said cable and caused cracks and holes to be rubbed and worn therein, through which rain and water leaked, and that it was thereby greatly damaged and prevented from carrying on its business and from discharging its duty to the public; that, in order to remove said obstructions, it did, in a careful and prudent manner,cut and trim said trees and the branches thereof, in a manner to do as little damage thereto as was possible and to mar them no more than was absolutely necessary, under the circumstances. It also alleged the defendant acted in good faith, and denied all wilful and wanton conduct on the part of its agents and servants.
There was a trial before the court and jury.
The plaintiffs introduced evidence tending to prove all the allegations of the petition; and the defendant’s testimony introduced tended to establish those of the answer. The jury found for the plaintiffs and assessed their compensatory damages at the sum of ten dollars,
In due time defendant filed its motions for a new trial and in arrest of judgment, which were, by the court, overruled, and defendant excepted, and, in due time, appealed the cause to the Kansas City Court of Appeals. The appeal was allowed November 12, 1903, and appellant was allowed until the first day of the February term, 1904, of said court, in which to file its bill of exceptions; but the record discloses that it was not filed until February 23, 1904, which was the second day of the February term, and the record does not show an extension of time was granted for filing same.
On motion, the Kansas City Court of Appeals transferred the cause to this court, because a constitutional question is involved herein.
I. The bill of exceptions was not presented and filed within the time allowed by the court. While February 22d was a public holiday, yet the mere fact the first day of the February term, 1904, of said court fell on a holiday was no legal excuse for appellant’s failure to file the bill on or prior to that day. [Stewart v. Brown, 112 Mo. 171-182; In re Charles Greene, 86 Mo. App. 216-223; State v. Green, 66 Mo. 644.]
The bill of exceptions not having been filed in time, there is nothing presented to this court for review, except the record proper. [Linahan v. Barley, 124 Mo. 560; Priddy v. Hayes, 204 Mo. 358.]
II. One of the grounds assigned for the arrest of the judgment was, that the petition does not state facts sufficient to constitute a cause of action against the appellant, and the objection to the sufficiency of the petition is renewed here. That objection raises a jurisdictional question which can be raised here for the first time and need not be by way of exception. [State ex rel. v. Griffith, 63 Mo. 545; Bums v. Patrick, 27 Mo.
Regarding the question in hand, the appellant takes the position that cutting the trees, located upon a public street, by the Telephone Company, was not a damaging of the private property of respondents for public use within the. meaning of article 2, section 12, of the Constitution of 1875. That whenever the city acquires a street, avenue, or any other public highway, either by condemnation, grant or dedication, it may be applied to all the purposes consistent with the purposes for which it was acquired, and that it is only when a street is subjected to a new burden inconsistent with and subversive of its proper use as a street that the abutting property-owner can complain. It also contends that the erection and maintenance of telephones are a proper use of a street. The owner of the adjoining premises cannot claim damages resulting thereto from user of street, and cite the following authorities in support of that contention: Julia Building Assn. v. Bell Telephone Co., 88 Mo. 258; Ferrenbach v. Turner, 86 Mo. 416; Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121; Dillon, Mun. Corp. (3 Ed.), sec. 690; West v. Bancroft, 32 Vt. 367.
We do not understand that the respondents controvert the rule above contended for by appellant in a proper case. Their answer to this contention is, that the appellant did not allege or prove that it had any right or authority whatever to occupy the streets of Liberty for the use of its cables, or other corporate property, but contend that it is a trespasser upon the streets of that city. There is nothing in this record to show the city of Liberty ever granted the appellant a franchise or a license to conduct a telephone business in that city, or authorized it to use or occupy its streets with its poles, wires and cables. In the absence of such
The very cases cited by appellant and relied upon as authority for cutting the trees disclose the fact that the acts complained of in those cases were expressly authorized and granted by ordinances duly enacted by the cities named therein, which is not true in this case, and for that reason they are not applicable here.
III. According to the laws of this State, the property owners in cities, towns and villages own the land to the center of the adjoining street, subject to the easement of the city. It has the right to subject the street to any and all of the uses or purposes for which the street was acquired; but until it does so subject it to one or more of those uses, or so long as he and the city'can jointly occupy and use the street without doing “violence to the full, free and complete exercise of the public easement,” he is to that extent just as much the owner of the property to the center of the street as he is of the remainder of the lot, and has the same right to use it in any manner for any purpose he may see proper, not inconsistent with the rights of the public. [St. Louis v. St. Louis Theatre Co., 202 Mo. 690.]
Among the many rights the lot-owner has in the street, if not expressly prohibited by the city, is to plant and grow shade and ornamental trees along the
No one has the right or power to deprive the property-owner of those trees, or his right to maintain them in the street except the city itself, or such as it may lawfully authorize. Even that power of the city is not absolute. It must exercise it with prudence and within reason, and not wantonly and wilfully. [St. Louis v. St. Louis Theatre Co., 202 Mo. 690.]
It would be no less startling than it would be novel to hold that the public service corporations have the power, right and authority to mutilate, damage or destroy the shade and ornamental trees growing upon the streets of our cities, at pleasure, without some authority, general or special, granted to them by the city in harmony with and recognizing the rights and interest of the property-owners in and to the trees, whatever those rights may be.
The petition stated a good cause of action, and we find no error in the record proper.
IV. The questions as to how the city, or the company acting under authority from the city, can remove such trees "when they interfere with the public, and how the owner’s damages are to be ascertained and paid when taken, are not before this court at this time, and we will not express an opinion thereon. “Sufficient unto the' day is the evil thereof. ’ ’
