193 Mo. App. 529 | Mo. Ct. App. | 1916
Plaintiff alleges that the defendant is a city of the third class; that she' was the owner of two adjoining lots fronting east on Fifth street of said city; that they were well improved and had two residences the!eon, shrubbery and lawns and a brick sidewalk in front thereof all upon the natural surface; that the defendant by two separate resolutions passed and approved by the Council of said city September 9, 1913, declared it necessary to improve said Fifth street by constructing in front of plaintiff’s property concrete curb, gutter and sidewalk; that bids were advertised for and ordinances' passed and approved October 16, 1913, accepting bids for the work and authorizing contracts for the curb and gutter and sidewalk at the established grade and under the direction and supervision of defendant’s engineer; that contracts were entered into with Gr. W.' Baldridge for the building of the. sidewalk and with L. A. Mason for the curb and gutter on the established grade; that said contracts provided for the payment for said work to be made by special tax bills issued by defendant; that the' contractors carried out the contracts by making the improvements as therein provided and tax bills were ordered issued to the con-, tractor; that the grade furnished to the contractors by defendant was about two and one-half feet above the natural surface of said lots and that said improvements were made without the city taking any steps
At the trial the defendant admitted that in 1907 the grade in front of plaintiff’s property was established and the testimony discloses that this new grade was between thirteen inches or two feet abov'e the natural surface where the improvements complained of were made. The resolution concerning the sidewalk, referred to in the petition was offered in evidence and it is admitted that the resolution concerning the curb and gutter is the same except that it calls for curb and gutter instead of for sidewalk. The resolution concerning sidewalk recites: ‘ ‘ That the Council deems and declares it necessary to improve'both sides of Fifth street of said city ... by excavating, filling, preparing foundations therefor, and constructing thereon first class concrete sidewalk on both sides' of said Fifth street, . . . where such improvements are not already in or permits granted therefor.” The ordinance accepting the bid and authorizing the contract provides for the excavating, filling, etc. “except where sidewalks are already in or permits granted therefor.” The contract entered into follows the language of the ordinance.
The contractors placed the curb and gutter in front of plaintiff’s property seven or eight feet from the sidewalk, also removed the brick, made 1 such fills as were necessary to bring the curb and gutter and sidewalk to the established grade and replaced the brick walk upon such grade. On April 24, 1914, the engineer of the defendant city reported to the Council that the work had been completed according to the contract; that he had computed and apportioned the cost, giving the square feet of new concrete walk
' At the close of the testimony the ■ defendant requested the court to direct a verdict in its behalf which was refused and thereupon, at the request of the plaintiff, instructed the jury that if the defendant by its contractor constructed in front of plaintiff’s property combined curb and gutter and sidewalk
Before the city can he held liable for damages in a case of this character for making fills to bring the .sidewalk portion of a street to an established grade it must he shown that the city by ordinance authorized it. [McGraw v. Granite Bituminous Co., 247 Mo. 549, 155 S. W. 411; Bigelow v. City of Springfield, 178 Mo. App. 463, 162 S. W. 750.] No question is raised in this case as to ratification of any improvement made, if as a matter of fact such a question •could get into a case of this character, hut the case was tried and is presented here solely upon the theory that the. city by its resolution and the ordinance accepting the contractor’s bid and authorizing the contract provided for the bringing of the street to the established grade and constructing thereon the sidewalk. It will be observed that the- resolution provided for concrete sidewalks where such improvements were not constructed. No such walk was in front of plaintiff’s lots and, therefore, the resolution would have justified the placing of a concrete walk along plaintiff’s property, but the resolution was not shown to have been adopted with the same formality as is required for the passage of an ordinance and until this is shown we must hold that it was not so passed. [Dalton v. City of Poplar Bluff, 173 Mo. 39, 47, 72 S. W. 1068.] Now, the ordinance which was passed, and the contract entered into pursuant therewith, made no provision whatever for fills or concrete walks where sidewalks were already in and. as there was
There are other questions in this case, thought not necessary to discuss as reasons for the conclusion we have reached, which may be material in a re-trial, and we shall, therefore, notice them.
Plaintiff’s Instruction No. 2 is as follows:
“The jury are instructed that if you find for the plaintiff your verdict should be for such sum, not to exceed one thousand dollars, as you may find and believe from the evidence would equal the amount that*535 the market value of such property was ^diminished by such acts of the defendant and in estimating the damages to said property you may take into consideration as elements of damage with other evidence in the case, the cost, if any, necessary to fill in said lots, to the. grade as changed by defendant, and raising and replacing the improvements thereon and the necessary destruction or damage of. any shrubbery or lawns that you may find and believe was on said property, allowing, however, as an offset any special benefit, if any, in the way of appreciation or increase in value, of said property by reason of raising the grade in front of plaintiff’s said property.’1’
The items of cost referred to in this instruction are properly considered “in estimating the damages of the plaintiff” (Smith v. Kansas City, 128 Mo. 23, 31, 30 S. W. 314), but they are not to be considered by the jury as “elements of damage.” In the Smith case there was an instruction similar to the one here. There the plaintiff prevailed and the defendant appealed. The Supreme Court affirmed thev judgment, but in commenting on the instruction stated that: “In plain and unmistakable terms, the jury were told in other instructions, for both plaintiff and defendant, that the plaintiff’s right to recover must be limited to the amount that they should find that the market value of the property had been depreciated by the lowering of the grade.” It was evidently considered that • the instruction was wrong, standing alone, and it is a useless and dangerous, practice to use it in its there form in a different setting, considering not only the accompanying instructions but variations in testimony.
There is some evidence in this case suggesting that plaintiff- may have had an arrangement directly with the contractor for the city for removing and replacing the walk in front of her property. If she thus undertook to do the work and it had to be done
The testimony in this case discloses that the roadway of the street in front of plaintiff’s property had been brought to the established grade before the curb and gutter had been put in or plaintiff’s walk changed, and consequently, if there is to bq a re-trial of this case the plaintiff should be allowed to amend her petition and try the issues, if she so elects, with all claims for change of grade for which the city is liable included therein. The city is entitled to the full advantage of. all benefits conferred upon plaintiff’s property by the improvements made in the entire street in front of plaintiff’s property for which it is liable even thongh the plaintiff does not so shape the issues as to claim damages for the change of the grade all the way across the street in front of her property.
The judgment is reversed and the cause remanded.