Scott v. City of Marshall

| Mo. Ct. App. | Feb 6, 1905

JOHNSON, J.

— 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 laid down in front of his lot a brick pavement four feet seven inches wide along the sidewalk next his lot. The city had not at that time fixed the grade of the street. The pavement was laid down on the natural surface of the ground. In 1900 the defendant established the grade on Arrow street in front of plaintiff’s lot which coincided very nearly with that of the natural surface of the ground along there. In the same year, the defendant — a city of the fourth class — passed an ordinance by which it condemned the sidewalk in front of plaintiff’s lot and ordered the street commissioner to remove the same. It was ordered by the same ordinance that an artificial stone sidewalk be constructed and laid down (including grading) according to the plans and specifications on file with the city clerk. The specifications, which were part of the ordinance, ■ required that all trees, stumps and roots for at least twelve inches below the grade of the sidewalk for the full width of the parkway be removed by the contractor. It was further therein required that the parkways should be graded to the full width thereof from the line of the curb to the line on either side, etc. It was further specified that the proportion of the parkway to be occupied by the sidewalk be excavated to a, sub-grade twelve inches below the general grade of the parkway. All the evidence on the subject, including that of the plaintiff himself, is to the effect that the proposed sidewalk could not be made five feet in width without the removal of the shade trees. All of them would either stand within the line of the sidewalk or so close thereto that their growth would produce displacement of the walk or portions thereof. The contractor, in performing the contract took up and removed the old brick pavement, cut down the trees, made the excavation and constructed the kind of sidewalk required by the specifications.

The plaintiff brought this action to recover damages for the tearing up of his sidewalk and cutting down his trees. In Ms petition he alleged that the defendant destroyed his trees without having found or declared that the same were an obstruction of the street or dangerous to the public use of such street, and caused his sidewalk to be torn up and removed without having found and condemned the same as defective. It was further alleged that the defendant did not take the steps required by law to assess the damages resulting to him from such change of grade and the destruction of his trees and sidewalk, etc.

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 old sidewalk and for replacing it with another to be constructed of artificial stoné in conformity to the plans and specifications was an authorized exercise of the legislative power of the defendant. As- the ordinance in this respect is not subject to interference by us, the sidewalk was, in legal contemplation, not different than if it had not been previously paved by plaintiff at all. The old pavement having been condemned by defendant no damage could result from its removal to make place for that ordered in its stead.

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" court="Mo. Ct. App." date_filed="1904-04-25" href="https://app.midpage.ai/document/colston-v-city-of-st-joseph-6621210?utm_source=webapp" opinion_id="6621210">80 S. W. 590; Gamble v. Pettijohn, 116 Mo. 375" court="Mo." date_filed="1893-06-05" href="https://app.midpage.ai/document/gamble-v-pettijhon-8010955?utm_source=webapp" opinion_id="8010955">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 court in sustaining the motion for new trial is reversed and the cause remanded with directions to enter judgment for defendant.

All concur.