90 Mo. 13 | Mo. | 1886
This is a suit to recover damages alleged in the petition to have been occasioned by cutting down, changing, and lowering the grade of May street, in the City of Kansas, in pursuance of a certain ordinance of said city, whereby plaintiff’s property abutting on said street is alleged to have been damaged.
The answer of defendant sets up in substance that May street was a public street of said city, with an established grade; that in 1882, plaintiff and other residents and owners of property between Sixth and Ninth streets in said city, petitioned the common council to grade a part pf said May street, from Sixth to Ninth street, according to a grade specifically set forth in the petition; that the common council found that the work as named in said petition had been petitioned for and the petition published according to law ; that in pursuance of said petition an ordinance was passed and the grade of the street lowered and changed, as prayed for by the petitioners, of whom plaintiff was one ; that he stood by and saw the work done according to his request, and that he is thereby estopped from setting up any claim for damages, if any resulted. The plaintiff admits that he joined with others in a petition to the common council asking for a change of grade in said May street, as alleged in defendant’s answer; that said change of grade and improvement of said part of said May street was done under and by virtue of the ordinance of defendant aforesaid, passed in compliance with said alleged petition; and that said improvement was done at the expense of the property holders owning the property fronting on said part of said street; and that the said common council did find and declare that the work
But two questions are presented by the appeal. First, was plaintiff estopped, by reason of his being one of the petitioners, from claiming damages ? Second, is so much of section 8, article 8, of the charter, as provides that, “if the common council shall, in the ordinance causing to be done the work petitioned for, find and declare that the work has been petitioned for, and the petition published according to law, such finding and declaration shall be conclusive for all purposes, and no special tax bills shall be invalid or be affected by any defect in, or objection to, the petition.”
It will be observed that this is not an action to recover damages occasioned by the negligent execution of the work in changing the grade of May street, but to recover damages resulting from grading said street at plaintiff’s request, by petition in connection with others, and which grading was done in exact conformity with the request so made. Plaintiff now comes in, after full completion of the work, and admits that he petitioned for the work to be done just as it was done; that he stood by and saw it done without murmur or complaint, but says, notwithstanding said admission and acquiescence, he ought to be allowed to recover damages because a sufficient number of others did not sign the petition to authorize the city council to act in the matter.
We have been cited to some authorities which inti
Viewing the subject in the light of the above authorities, and giving efficacy to the principle which they announce, and. applying the maxim, •“ Volenti non fit injuria,” it disposes of both the questions raised by the record, and leads to an affirmance of the judgment, and it is hereby affirmed.