110 Mo. App. 178 | Mo. Ct. App. | 1905
— The plaintiff in 1879 became the owner in fee of lot 85 situate on the north side of East Arrow street in the defendant city, and in that year erected thereon a dwelling house and other improvements. In the same year that he acquired title to the lot he planted a row of maple and elm trees in front of it. These trees were about five feet from his lot line as he then understood its location; but about four and one-half feet from the line as located at the time of the doing of the work complained of. Later on he
The plaintiff brought this action to recover damages for the tearing up of his sidewalk and cutting down
The answer was a general denial. There was a trial and verdict for defendant which, on motion of plaintiff, was set aside; and from this order of court defendant appealed.
The defendant under its charter was authorized to open and improve streets and make sidewalks and establish grades for all improvements. [R. S., sec. 5979.] Its charter further conferred upon it the general power, when it deemed it necessary, to ‘ ‘ otherwise improve any street within its limits.” [Sec. 5899.] The power to provide for the removal of obstructions from its sidewalk was another conferred by its charter. [Sec. 5960.] And in addition to these, it was given the power by ordinance to condemn wooden and defective sidewalks. [Sec. 5991.]
Under the grant, “otherwise to improve any street,” the defendant had power to pass the ordinance condemning and ordering the removal of the old brick sidewalk. The power exercised by the legislative department of the defendant in the passage of the ordinance was within the terms of the grant itself — section 5991 — and not such as was merely incidental to its power as a city of the fourth class. With the exercise of such power the courts do not interfere. The old brick sidewalk was several inches above the established grade and was neither of the materials nor width of the new one ordered to be constructed. The ordinance in so far as it condemned and ordered the removal of
The ordinance is not as artistic and explicit as it might have been, still, we think it is sufficient to show the condemnation of the old sidewalk; and in view of the condition in which the evidence shows it to have been, we are not prepared to say that condition did not justify its condemnation; nor that the action of the city in removing it was an unreasonable and oppressive exercise of its discretionary powers.
So, too, with respect to the shade trees. There is enough in the record to show that their removal was ordered by the defendant not oppressively nor unreasonably but because if permitted to stand they would be an obstruction to the proper and uniform construction of the sidewalk. The evidence is all oue way upon the fact that they were such obstruction. The plaintiff had no property-right in the trees which prevented the defendant from removing them when they interferred either with public travel or with the improvement of the street according to a general plan. [Colston v. St. Joseph, 80 S. W. 590; Gamble v. Pettijohn, 116 Mo. 375; Smith on Munic. Corp., sec. 1311.] In removing such obstructions defendant was acting strictly within the powers conferred upon it by charter. [R. S., sec. 5960.]
It is unnecessary to review the instructions. Under the views herein expressed, a peremptory instruction should have been given to find for defendant. The verdict was for the right party and the action of the trial