47 Mo. App. 452 | Mo. Ct. App. | 1892
The plaintiff’s petition alleges that he was the owner of a certain lot and the improvements thereon fronting on Gracia avenue, one of the public streets in the city of Marceline ; that the defendant without authority of law wrongfully and negligently built and constructed and maintained a high and wide embankment in and upon said avenue in front of plaintiff’s ■lot, whereby said street was so obstructed that it. could not be used by plaintiff for the use of plaintiff’s said lot and improvements, by reason-of which he was damaged, etc.
The answer was first a general denial and then alleged, inter alia, that defendant did build a bridge on said Gracia avenue over its tracks, and that, in making a proper and accessory approach to said bridge on the ■southeast side of its railway, it had to and did raise
The answer further alleges that its said bridge and approaches were built and maintained with the acquiescence etc., of the city of Marceline. There was atrial and judgment for plaintiff, from which defendant appealed. The evidence and instructions, we will presently refer to.
I. The first ground upon which defendant demands a reversal of the judgment is that the trial court erred in instructing the jury that “the fact, if such be the fact, that the bridge across Gracia avenue, and the approaches thereto were built with the knowledge and consent of the city authorities, is no defense.” The right of an owner of a lot in a town or a city to the use of the adjoining street is a property right, and a right of which he cannot be deprived without just compensation. This right is as much property as the lot itself. Reed v. City of St. Louis, 93 Mo. 408; Lackland v. Railroad, 31 Mo. 181; Bridge Co. v. Sherbacher, 53 Mo. 586; Ferrenbach v. Turner, 86 Mo. 416. And such towns or city, under section 21, article 2, constitution, 1875, would be liable to an adjoining lot-owner for damages resulting from the change by it of the grade of a street. Julia Building Ass'n v. Tel. Co., 88 Mo. 258; Werth v. City of Springfield, 78 Mo. 107; Householder v. City of Kansas, 83 Mo. 488. And, if such a liability attaches to a town or a city, it logically follows that a railroad company, which had the right conferred on it to alter the grade in a sti’eet for the purpose of constructing approaches to a bridge aci’oss its tracks, would'also be liable to an abutting lot-owner for damages to lxis' lot by reason of such alteration. The privxlege gx’anted in such case would be inseparably coupled with a liability. Sheehy v. Railroad, 94 Mo. 574. It is thus made appai’ent that, the coxxsent of the city that the defendant obstruct its street in front of the plaintiff’s
II. The defendant further complains that the court erred in giving a further instruction for plaintiff, which in effect declared that if the defendant built an embankment of dirt and clay in the street along and in front of plaintiff’s property, thereby making the street higher than plaintiff’s lot, and that defendant by so doing impaired the usefulness of said street and the plaintiff ’s property had been lessened in value thereby, then the jury should find for the plaintiff. The evidence tends to show that the street in front of plaintiff ’ s lot was eighty feet wide, and that the said embankment therein was from four and a half to five feet high, forty-eight feet wide at the bottom and forty feet at the top ; that the embankment came within sixteen feet of the plaintiff’s lot; that if plaintiff put down ' a sidewalk it would keep wagons from coming to his property; that dirt and water would wash down from the slope of the embankment into the door of plaintiff’s • house ; that the difference between the value of plaintiff’s property with, and that without it, as stated was very considerable; that it had been damaged $500 by reason of the embankment. The evidence was ample to justify the giving of the instruction.
This case is not at all analogous to any of the following cases cited and relied upon by the defendant: Fairchild v. St. Louis, 97 Mo. 85; Heed v. St. Louis, 93 Mo. 408; Cannon v. St. Louis, 97 Mo. 92. In none of these cases was the street obstruction, complained of, in front of the complainant’s property. There was no appropriation of the street in front of the lots of any of these parties, no deprivation of the use of the street adjoining their property, no interference with the right of access to their property. The right of an abutting owner to access to
III. The defendant further complains of the action of the court in giving an instruction which informed the jury that if they found “that the approaches to said bridge extended out in front of and beyond the plaintiff ’s property, and that the plaintiff’s property is damaged thereby, they will find for the plaintiff.”
The embankment was about as permanent as anything that human hands could make, and would continue without change from any cause but human labor. The damages for such an injury are original and may at once be estimated, and compensated. Sedgwick on Dam. 94; Powers v. Railroad, 45 Iowa, 652; Blodgett v. Railroad, 53 Iowa, 470; Town of Troy v. Railroad, 3 Foster (N. H.) 383. It would undoubtedly have been better if this instruction had specially mentioned in its hypothesis each .element of fact for the guidance of the jury. But in yiew of the further instruction given by.the court for the plaintiff, which told the jury, if they found for plaintiff, to assess his damages at such sum as would compensate him for the diminution in the value of the property, if any, caused by the obstruction in front of his property, etc., and by the evidence, we are not inclined to think that the jury were misled or the defendant prejudiced by the giving of the instruction.
The uncontradicted evidence shows that the obstruction was of a permanent character and the injury resulting therefrom was to the inheritance. The measure of damages declared by the plaintiff’s instruction was the difference between the market value of the property immediately before the injury occurred and its value
Whatever may have been decided elsewhere, it will not do for us to hold in this case, as a matter of law, that the space of sixteen feet betweén the embankment and plaintiff’s property was sufficient to enable plaintiff to exercise the right of ingress to, and egress from, his property without unreasonable impairment. And why ? The lot in which plaintiff’s hotel is situated adjoins the railroad right of way on the west side ; presumably vehicles of various kinds for the receipt and discharge of its guests and their luggage must have frequent and convenient access to plaintiff’s hotel, and so must wagons bringing supplies of various kinds there. Those arriving from the west must stop on the embankment, or, to get closer, they must pass by plaintiff’s property, and then turn east into the narrow passage way left. They cannot turn around in front of plaintiff’s property, but are compelled to pass by it and upon the railroad right of way, where it is both unlawful and dangerous for them to go, before they can turn around. If plaintiff constructs a reasonably wide sidewalk in front of his property, there is no wagon way left, or none where wagons can pass each other. Under such circumstances, it would be absurd to hold as a matter of law that the plaintiff’s street right in front of his property has suffered no impairment. It seems to us that the judgment is for the right party, and ought to be affirmed, which is accordingly ordered.
