96 Mo. App. 657 | Mo. Ct. App. | 1902
It is alleged in the plaintiff’s petition that he was the owner in fee simple of lots 1, 2, 3 and 4, in block 5 of Clark’s addition to the city of' St. Joseph — the defendant — and that said lots abut Colorado avenue on the south side' thereof and Barbara street on the west. It was, however, conceded at the trial that the plaintiff did not own lots 3 and 4. The petition further alleged that the defendant under a certain ordinance caused Colorado avenue and the approaches thereto to be graded “so as to cause a cut of about twelve feet in depth at the northwest corner of .plaintiff’s lots to about four feet in depth at the southwest corner of plaintiff ’s lots on Barbara street, and about six feet in depth sixty feet east of the northwest .corner of said lots in Colorado avenue, ” etc.
The following diagram illustrates the location of plaintiff’s lot and its relation to Colorado and Barbara streets and the street improvement-complained of:
At a trial of the issues before a jury the plaintiff offered to read in evidence the ordinance referred to in his petition which was to the effect that “Colorado avenue between the east line of King Hill avenue and the east line of Barbara street be graded according to the specifications on file in the office , of the city engineer.” To the introduction of this ordinance the defendant raised the obj ection that it did not provide for grading the street in front, up to or against plaintiff’s, lots.- These objections were by the court overruled and to which ruling defendant excepted. The ordinance did not authorize the grading of Colorado avenue or Barbara street in front of plaintiff’s lots. The northwest corner of plaintiff’s lot 1 touches the southeast corner of the section of Colorado street which the ordinance directed to be graded. The plaintiff’s lot corners with that of the graded sectio.n of said street exactly like section 12 does with section 2 in a township sectionized according to the United States land surveys. It is plain that the ordinance did not authorize the grading of either Colorado or Barbara streets at any point where plaintiff’s lot abutted thereon. And if the grading had been done as alleged in plaintiff’s
It has been several times ruled in this State that before a lotowner can recover damages for an obstruction in a street, he must show that such obstruction is in that part of the street upon which his lot abuts. Rude v. St. Louis, 93 Mo. 408; Wallace v. Railway, 47 Mo. App. 491; Stephenson v. Railway, 68 Mo. App. 642. And this rule, we think, is equally applicable to a case like this where it is claimed by the lotowner that his lot has been rendered inaccessible by reason of an excavation in the street. His lot must abut on that part of the street excavated,■ otherwise.he can not complain. And since the ordinance did not authorize the excavation to be made in front of plaintiff’s lots on either of said streets, it did not sustain the allegation of the petition ; nor did it tend to prove any liability on the part of the defendant for the injurious consequences alleged to have resulted to plaintiff from the street excavations in front of the latter’s lot.
But it is contended that even if the excavation was not made in front of the plaintiff’s lot, that it at least ■cornered with it, and as such excavation at said corner was 5.35 feet deep, that his right of ingress and egress •at that point was impaired, it is quite difficult to see how this could be so. Suppose a line be extended vertically from the surface of the street as graded to that
It seems idle to contend that he has lost access at the corner. And the. same is true as to the loss of lateral support. The quantity of earth removed from the córner of plaintiff’s lot by the excavation is more fanciful than real. The extent to which the lateral support from the corner of plaintiff’s lot has been withdrawn is measured by the length and breadth of the vertical line between that corner and the southeast corner of the section of the street graded, which is inconceivably small. This corner of plaintiff’s lot has still all the lateral support it ever had. In making the grade there was no withdrawal of any lateral support from either side of it, and consequently none at any corner. The conditions have not been disturbed. As long as the grade in either of the streets is not extended in front of the plaintiff’s lot, the question of lateral support can not arise.' There was no evidence that the grade extended beyond the limits named in the ordinance.
The witnesses'who gave their opinion as to the quantum of damages sustained by plaintiff evidently had in mind the condition plaintiff’s property will
If there was an injury it was injuria absque damno.
It appears the case was tried upon the idea that there had been an impairment of the plaintiff’s right of ingress and egress at the northwest corner of his lot, and the withdrawal of lateral support therefrom, for which he was entitled to damages. This was, as we think, entirely erroneous. Upon the undisputed physical facts, the plaintiff should have been denied a recovery. The defendant’s demurrer to the evidence should, therefore, have been sustained.
For the error of the court in admitting said ordinance in evidence and denying the defendant’s demurrer, the judgment, which was for plaintiff, must be reversed.