Hampton v. Kansas City

74 Mo. App. 129 | Mo. Ct. App. | 1898

Ellison, J.

— This is an action instituted by plaintiffs to recover damages done to their real property by the defendant city in changing the grade of the street in front of said property. The judgment was for plaintiffs. The sole ground of defendant’s appeal is on the assignment that the trial court erred in directing the jury to allow interest from the date the damage was done down to the time of the trial.

DitreAoffc¿ángeS«f !nt«esgtrade: The interest allowed plaintiffs was compensatory and was in no respect a penalty. The damages allowed were such damages as plaintiffs’ property suffered at the date of the change of the grade. At that time defendant justly owed plaintiffs reimbursement in an amount equal to the damage done. It was an obligation which the defendant should have discharged at that time. It chose not to do so. It elected not only not to discharge the obligation but to litigate plaintiff’s right, thus increasing the delay to the injury of the plaintiffs. There is a class of cases which allow interest when the land has been taken from the owner and assign as a reason that the party taking the land has had the use of it. But that reason is not the only one which should suggest the allowance of interest. The injury to the other party must be compensated. The injury to the property is based on an estimate at time of injury. If he is deprived of the sum thus estimated, he is deprived of complete compensation unless he receives interest.

It has been ruled in this state that where the land has been taken or appropriated by another, interest should be allowed from the time of taking. Webster v. R’y, 116 Mo. 114. But a distinction between a taking of the land and a damage to the land is contended for. We think there can not fairly be a distinction so far as it concerns compensation to the injured party. And it has been decided by the supreme court that the standard for the measurement of damages was the same, whether the property be taken or be merely damaged. Hickman v. Kansas City, 120 Mo. 110. While no question of the allowance of interest was involved in that case, yet it is clear that the basis of compensation is stated to be the same in either ease. As bearing out generally the views herein expressed, see R. R. v. McComb, 60 Me. 290; Phillips v. South Park, 119 Ill. 626; Drury v. R’y, 127 Mass. 585; Cohen v. R’y, 34 Kan. 158.

The result of what we have said is to affirm the judgment and it is so ordered.

All concur.