132 Mo. App. 287 | Mo. Ct. App. | 1908
This is a suit to recover damages resulting to plaintiff from the excavation of a public street to bring it to the established grade. Defendant Pope was the contractor who did the work and defendant Wallau was the mayor of the city and signed the contract in that capacity but is sued as an individual. Verdict and judgment were for plaintiff and against both defendants in the sum of $575.
Facts necessary to be considered thus may be stated: Plaintiff owned and occupied as a residence a lot in the city of Jefferson, a city of the third class. His house contained four rooms, was built of brick and
The evidence • of plaintiff shows that Avithout authority other than that afforded by the resolution, defendant Pope, under the personal supervision of defendant Wallau, excavated the street to a depth of about thirty feet below its natural surface and thereby entirely cut off access therefrom to the alley. As a result, vehicles being unable to turn around in the alley
Two of the instructions given at the request of plaintiff are as follows: “The jurors are instructed that if they find and believe from the evidence before them in this case that plaintiff is now and was during the year 1906 the owner of the house and premises referred to in the evidence, and that said premises are, a part of Inlot No. 822 of the city of Jefferson, Missouri, and that the defendants, without an ordinance of said city authorizing them so to do, entered (as claimed by plaintiff) upon that part, of Monroe street in said city lying at the intersection of said street with the alley (referred to in the evidence) on which plaintiff’s said premises abut or front, and did excavate and remove the rock and earth (or cause the same to be done) in said Monroe street at and along the place of its intersection with said alley and did thereby, prior to November 26, 1906,. so reduce the natural grade or surface grade of M'onroe street at the place of said intersection with said alley as to deprive plaintiff of access from said Monroe street by means of said alley to his house and premises situated thereon, and did thereby lessen and decrease the value of plaintiff’s said property and premises; then the jury will find the issues for the plaintiff and assess plaintiff’s damages on this feature of the case such sum as constitutes the difference between the value of his said property and premises just before the work of
“The court further instructs the jurors that if they find and believe from the evidence that defendants in the work of excavating the rock and earth on Monroe street, referred to in the evidence, did use dynamite or other explosives for the purpose of blasting and rending the rock in said street where they were so at work, and did thereby cause loose rock and other material to fall on plaintiff’s house and premises, situated in said Lot 822 of the city of Jefferson, thereby injuring said house and did also by said use of explosives in blasting, cause such shaking and vibration of the earth and concussion in and around plaintiff’s said house and premises as to unsettle said house and cause its walls to sever and crack, thereby injuring and impairing the value of said house, then the jury will also, in their verdict, allow plaintiff such reasonable sum as will fairly compensate him for the injuries so done to his house; and in arriving at said sum the jury will take into consideration the condition and value of said house immediately before the injuries thereto caused by said blasting (if such was the case), and its condition and value immediately after said blasting was done.”
In other instructions, the jury were' told not to allow damages for injuries resulting from work done after November 26, 1906, the date of the approval of the ordinance for the grading of M'onroe street, and further were told, in effect, that any work done on the street before that ordinance was passed and pursuant only to the resolution was illegal and that defendants and not the city were liable to answer for its injurious
We approve the holding of the learned trial judge that in the absence of an ordinance authorizing the work, the defendant contractor had no right to bring the street to the established grade. The ordinance establishing the grade gave him no such .authority, nor did he acquire it from the resolution adopted by the city council nor from the contract executed by the mayor. He was a mere trespasser and in aiding and encouraging the contractor to do the work, defendant Mayor likewise was a trespasser. Directly to the point is what was said by the Supreme Court in the following-quotation from the opinion in Reed v. Peck, 163 Mo. 333: “The grading in front of plaintiff’s residence was unquestionably done without lawful authority, was a trespass; there was no ordinance providing for such grading. And while the work was actively performed by the street commissioner, there was, it seems, evidence tending to prove that Mayor Guitar and street committeemen Peck and Watson were present from time to time superintending and encouraging the work. In McManus v. Lee, 13 Mo. 206, Judge Wagner, speaking for the court, says: ‘That any person who is present at the commission of a trespass, encouraging or exciting the same by words, gestures, etc., ... or who in any way or by any means countenances or approves the same, is in law deemed to be an aider and abettor,
The passage, after the work was done and the damage inflicted, of an ordinance authorizing the grading of the street could not serve to make lawful that which Avas unlawful Avhen done — to legitimize and purge of turpitude the wrongful aggression of trespassers. Defendants should be held liable as joint tortfeasors for all damages suffered by plaintiff in consequence of being deprived by their acts of the enjoyment of his right of ingress and egress to and from the street and for the damages Avrought to his premises by the blasting. In answer to the suggestion that since plaintiff’s lot does not abut Monroe street, his right to the use of that thoroughfare is only that of a. member of the public at large and in no sense is special, Ave refer to our opinion in Dries v. St. Joseph, 98 Mo. App. 611, where we said:
“But the alley in each block is a complete entity unto itself, and it is immaterial to the owners of property in one block Avhether there is an alley in the next or any other block or not, and likewise immateiial to the general public whether there are any alleys or not. It seems to us that it is plain that abutting property owners on an alley have property rights in the entire alley not shared by the general public. If the city had a right to obstruct one end of the alley in question, it had the right to obstruct both ends, and thus prevent any use Avhatever of the same by the plaintiff. The
As far as the right of plaintiff to receive compensation for the damages he sustained from the blasting is concerned, it is immaterial whether defendant Pope exercised great or 1 ititle care to avoid injuring adjoining property. If he exploded blasts Avhich caused the surrounding earth to vibrate to an extent to crack and shatter the walls of plaintiff’s house and which projected stones against it, he was guilty of an actionable trespass, regardless' of the question of the degree of care employed. Becently we considered this subject in Hoffman v. Walsh, 117 Mo. App. 278, and in Knight v. Donnelly, 131 Mo. App. 152, and refer to the opinions in these cases for a full expression of our views. It follows from what we have said that the theory of defendant’s instructions cannot be adopted; and Ave must hold they Avere properly refused. ,
We find the instructions given at the instance of plaintiff to be free from objection except in one particular. In the first, the rule given for measuring the damages resulting from the injury to plaintiff’s easement is to “assess plaintiff’s damages on this feature in such sum as constitutes the difference between the value of his said property and premises just before the Avork of said reduction and change of surface grade of Monroe street Avas begun and its value after said work was 'done,” etc. In the second, the jury are instructed to add to their estimate of damages, under the rule just stated “such reasonable sum as will fairly compensate him for the injuries so done to his house (from blasting) and in arriving at said sum the jury will take into consideration the condition and value of said house immediately before the injuries thereto caused by said blasting (if such was the case), and its condition and value immediately after said blasting was done.” We think the defendants are right in saying that thus in
We regard the error as prejudicial and accordingly the judgment is reversed and the cause remanded.