Rude v. City of St. Louis
93 Mo. 408
Mo.
1887
Check Treatment
Black, J.

The plaintiff owns, and for many years has owned, a lot in St. Louis at the corner of High street and Scott avenue, and upon which he has three buildings, two dwelling-houses and a one-story grocery-store. About five hundred feet south of his property,. the tracks of the Missouri Pacific Railway Company and the Wabash, Sts Louis, and Pacifiс Railway Company cross High street in an east and west direction. High street runs north and south. These tracks were at the *413grade of the street, and were put down and used by authority of law. The city built a viaduct, or bridge, over the tracks at Jefferson avenue, which is the next street west of High street. In November, 1880, the city,, by ordinancе, gave the railroad companies permission and authority to depres's their tracks at Jefferson avenue and High street. This was done to accommodate and conform to a system of bridges, which the city was-building, and expected to build, over the railroad tracks, and pursuant to an agreement, befоre made, by the city and the railroad companies. After the passage of this ordinance, and pursuant to the previous agreement with the city, the railroad companies depressed their tracks at Jefferson avenue and High street. This work was done in the winter of 1880 and 1881, and it left an excavation aсross High street from four to six feet in depth. The street remained in that condition, wholly impassable for teams, to the trial of this cause, in, 1884. At the time of the excаvation, High street was an improved public highway.

Plaintiff brought this suit against the city, and both of the railroad companies, to recover damages because his-property had been permanently injured, and its rental value depreciated by reason of the obstruction in the street. He recovered judgment fоr two thousand dollars-for permanent injuries to his property, and defendants appealed. The defendants ‍​​‌​‌​‌​‌‌​‌​‌‌​​​​‌‌​​​​‌‌​​‌​​​​‌‌​‌​​‌‌​‌‌‌​​‍have made a controversy as between themselves, which we do not stop to consider. There is no doubt but the right of an owner of a lot in a town or city to the use of the adjoining street is a prоperty right, and a right of which he cannot be deprived without just compensation. This right, it has been said, is-as much property as the lot itself. Lackland v. Railroad, 31 Mo. 181; Bridge Co. v. Schaubacher, 57 Mo. 580; Ferrenbach v. Turner, 86 Mo. 416.

As showing that the plaintiff has bеen deprived of that right, we are cited to the following cases: Lackland *414v. Railroad, supra; Swenson v. City of Lexington,, 69 Mo. 157; and Cross v. Railroad, 77 Mo. 318. These oases recognize the right of a railroad company to lay down and use its track upon a street, when that right is conferred upon it by the municipality, the municipality having the power delegated to it to grant that right; still the track must be laid upon the grade of the street and the railroad so used as not to unreasonably deprive the owner of the property of the use of the street. In the first of these cases, the defendant built a main and side track, with a connecting switch, upon an embankment in front of plaintiff’s property; so in the other cases, the. obstructions were in the street, and in front of the property owned by the plaintiff, and wholly, onto an unreasonable extent, cut off communicatiоn to and from the street. But, in this case, the obstruction is five hundred feet south of the plaintiff’s lot.

’ In Dillon on Municipal Corporations, we find this statement: uAlthough the distinction bеtween ‍​​‌​‌​‌​‌‌​‌​‌‌​​​​‌‌​​​​‌‌​​‌​​​​‌‌​‌​​‌‌​‌‌‌​​‍the nature of the rights of the public in a street, and the right of an individual proprietor to access to his premises from the street, has been often overlooked, yet it is one which has been asserted by high authority. The right of an abutting owner to access to and from the street is a private right, in the sense that it is something different from the right which the members of the public have to use the street for public purposes. Conformably to this distinction, and in part based upon it, a person owning or in possession of premises abutting on the public highway or street, whose right of access to the same is unreasonably ‍​​‌​‌​‌​‌‌​‌​‌‌​​​​‌‌​​​​‌‌​​‌​​​​‌‌​‌​​‌‌​‌‌‌​​‍or unlawfully obstructed, may recover from the person causing such obstruction damages for the private injury he sustains, where such damages are particular, direct, and substantial.” Sec. 730 [3 Ed]. So the law is quite well settled that thе property owner must show, to entitle him to *415recover damages for an obstruction to a highway, that the damages are peculiar to him, different in kind, and nоt merely in degree, from those suffered by other members of the community. Dougherty v. Bunting, 1 Sand. 1; Lansing v. Smith, 8 Cowan, 146; Bailey v. Culver, 84 Mo. 531; Willard v. City of Cambridge, 3 Allen, 574; Venard v. Cross, 8 Kan. 254; and notes to Fritz v. Hobson, 19 Am. Law Reg. 624.

Generally, where damages have been awarded to a property owner for an obstruction in the street, the obstruction has been in that part of the street upon which the property fronted; yet it cannot be said that this is always essential to a recovery. The property may not be on the street, yet may communicate with it by means of a private way, in which event it would seem that аn obstruction at the private way would be an infringement of a private right. Now, in this case, the plaintiff has perfect access to his property. It is only when he goes south, passing ‍​​‌​‌​‌​‌‌​‌​‌‌​​​​‌‌​​​​‌‌​​‌​​​​‌‌​‌​​‌‌​‌‌‌​​‍Scott avenue and another street, that he comes in contact with the obstruction, the nuisance. Ilis inconvenience, and that of persons going to and from the grocery is precisely the same in kind as that of all other persons who desire to use High street. His may be greater in degree, but not different in kind. The nuisance is a public one, and the physical facts show that the damages to the property are due to a public, and not to a private, wrong. There can be no action for private damages due to a wrong, which, as to the plaintiff, is public only.

Nor does section 21 of аrticle 2, of our present constitution, which provides, “that private property sball not be taken or damaged for public use without just compensatiоn,” aid the plaintiff in this action. Before the adoption of the constitution of 1875, it had been repeatedly held by this court that a city was not liable to an abutting property holder for damages resulting from the grading or re-grading of the street, when done *416by authority of charter powers. Hoffman v. City of St. Louis, 15 Mo. 651, and. cas. cit. Of course, without such power or any statutory law, thе city would have been liable, if the plaintiff brought himself within the rules before stated as to special and peculiar injuries. Conceding that the constitutional provision of 1875 goes so far as to give a remedy where there would have been one for damages, but for the charter power or other statutory law, still, as we have seen, the plaintiff has not brought himself within the rule.

The section of our constitution, as to taking or damaging private property for public use, ‍​​‌​‌​‌​‌‌​‌​‌‌​​​​‌‌​​​​‌‌​​‌​​​​‌‌​‌​​‌‌​‌‌‌​​‍is thе same as that of the state of Illinois. The Supreme Court of that state, in Rigney v. City of Chicago, 102 Ill. 80, in discussing this section of the constitution of that state, uses the following language: “In all cаses, to warrant a recovery, it must appear that there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that, by reason of such disturbance, he has sustained a speciаl damage with respect to his property in excess of that sustained by the public generally.” This is further qualified by the statement that, “in the absence of any statutоry or constitutional provision on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers оf the present constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law.”

Under this rule, which goes as far in favor of damages as we are willing to go, the plaintiff cannot recover, for he has not shown that he has suffered any damages special and peculiar to his property. There is, therefore, no use of remanding this cause, and the judgment will be simply reversed.

All concur.