| Mo. Ct. App. | Apr 25, 1904
The defendant city graded a certain street in front of plaintiff’s property and while so doing left an embankment several feet in height and cnt down four shade trees that were growing near her line. There was a petition filed, in which plaintiff joined, asking that the street be graded. The city council made the necessary order and tbe street was graded with the exception of a strip of about six feet next to the line of plaintiff’s lot. Afterwards, another ordinance was passed by the council providing for the grading of the entire street. Under this last order the said six feet was graded and the four shade trees were cut down and removed. After the first grading the plaintiff built a retaining wall on the outside line of the said six feet of ground under the belief that she was the owner thereof. This wall was torn down and also removed by the defendant. The shade trees in question although standing in the street, penetrated plaintiff’s land with their roots.
Under the instruction of the court the jury returned a verdict for defendant. The plaintiff filed a motion for a new trial, assigning as a reason therefor, among others, that the court committed error in giving instruction number three at the request of defendant. The court granted a new trial solely on the ground of error
The instruction giving rise to the controversy is as follows: “The jury are instructed that plaintiff can not in this case recover any damages for the trees mentioned in evidence, if the trees were wholly or partially in the street, and were not at the curb line, but were so located as to obstruct the travel or use of the street unless they were removed. ’ ’
In Walker v. City of Sedalia, 74 Mo. App. 70" court="Mo. Ct. App." date_filed="1898-03-07" href="https://app.midpage.ai/document/walker-v-city-of-sedalia-6618960?utm_source=webapp" opinion_id="6618960">74 Mo. App. 70, it was held: “The destruction of shade trees along the sidewalk may be considered as an element of damages resulting to abutting property-owners from the change of grade of the street.” See also, McAntire v. Joplin Telephone Co., 75 Mo. App. 535" court="Mo. Ct. App." date_filed="1898-05-16" href="https://app.midpage.ai/document/mcantire-v-joplin-telephone-co-6619059?utm_source=webapp" opinion_id="6619059">75 Mo. App. 535. The evidence in the former case disclosed that the trees in question stood between the curb and the sidewalk and in no way obstructed the public use. But here, it became necessary to remove the trees in order that the public use of the street be not obstructed and the; case falls within the principle announced in Gamble v. Pettijohn, 116 Mo. 375" court="Mo." date_filed="1893-06-05" href="https://app.midpage.ai/document/gamble-v-pettijhon-8010955?utm_source=webapp" opinion_id="8010955">116 Mo. 375; Smith on Munic. Corp., sec. 1311. It seems to be blear that a city has a right to remove shade trees or any other obstruction in order to put its streets in condition for the use of the public.
It follows therefore that it was not error to give said instruction, for which reason the cause is reversed with directions that the verdict of the jury be restored and judgment thereon entered for defendant.