Sheehy v. Kansas City Cable Railway Co., 94 Mo. 574

Sheehy v. Kansas City Cable Railway Co.

94 Mo. 574 | Mo. | 1887

Nobton, C. J.

Plaintiff, as the owner of a certain lot in Kansas City, with three dwelling-houses upon it, with a frontage of one hundred and ninety-two feet on Ninth, and fifty feet on Jefferson streets, in said city, sues for damages to said property, alleged to have been occasioned by the act of defendant in cutting down and lowering the grade of said Ninth street, below the grade established in 1879, when said houses were built on said lots. Defendant justified the act under an ordinance of the City of Kansas, approved April 4, 1883, authorizing *578J. W. Smith, and others to construct and operate for the term of thirty years, an endless cable street railroad on and over certain streets, one of them being said Ninth street, from Grand avenue west to the west boundary line of Coates’ addition. This ordinance authorizes a change in the grade of Ninth street in front of plaintiff’s lot, and the evidence shows that the grade was, by defendant, cut down and lowered below the grade established in 1879, twenty feet at the west end of plaintiff ’ s lot, fifteen feet and three inches opposite the west house on said lot, six feet at the middle house, and that the two grades came together at the west line of Jefferson street. In regard to the damage occasioned by this change of grade to plaintiff’s property, the evidence is conflicting, and on the trial judgment was rendered for plaintiff for five thousand dollars, from which defendant has appealed, and seeks a reversal for alleged error in the action of the court in giving and refusing instructions, and because the damages are excessive.

The court, as shown by the instructions given as well ■as by those refused, tried the case on the theory, that while the city had the right by ordinance to change the grade of said street in front of plaintiff’s property, and to. authorize defendant to make such change, still the ■defendant was liable for any damage resulting to plaintiff by reason of such change. It is insisted by counsel that this theory was erroneous, and that the city being fully empowered by its charter to grade, alter, and •change the grade of its streets, and having changed the grade of Ninth street at this locality by ordinance, and authorized and permitted defendant to grade the same for the purpose of constructing its road thereon, it is not liable for damages resulting therefrom. This point is not well taken. Anterior to the adoption of the constitution of 1875, and as far back as the case of the City of St. Louis v. Gurno, 12 Mo. 414, it was the established rule in this state, that where a municipality was invested with *579the control of its streets, and the power to fix, alter, and change the grade of the same, that any damage resulting to an abutting property owner from the change of grade was damnum absque injuria, unless the injury could be shown to have resulted from the negligent or improper manner in which the work was done. ' Section 21, article 2, of the constitution of 1875, which provides that “private property shall not be taken, or damaged, for public use without just compensation,” has changed this rule. Werth v. City of Springfield, 78 Mo. 107. In this case it is held that, “when property is damaged by establishing the grade of a street, or by raising or lowering the grade of a street previously established, it is damaged for public use within the meaning of the constitution.” It is clear that the City of Kansas under its charter had the power to change the grade of Ninth street, and it is equally clear, under the provision of the constitution above quoted, that if, in the exercise of that power, the property of an abutting owner was damaged, such owner would be entitled to recover such damages from the city. And if such liability would attach tó the city, it necessarily and logically follows that a railroad company which had the right conferred on it to alter the grade of the street for the purpose of constructing its road, would also be liable to an abutting property Owner for damages to his property by reason of such alteration. In such case the privilege granted the railroad “would be yoked with a liability.” That the owner of property abutting on a street has such an easement therein as would support an action for damages peculiar to him is sustained by the following cases : Lackland v. Railroad, 31 Mo. 181; Werth v. City of Springfield, supra; Householder v. City of Kansas, 83 Mo. 488; McElroy v. Kansas City, 21 Fed. Rep. 257; Story v. Railroad, 90 N. Y. 122; 104 N. Y. 268; 60 Tex. 663; Cross v. Railroad, 77 Mo. 318. The theory *580upon which the court tried the case, as embraced in the instructions, was a correct one.

It is insisted that the damages awarded by the jury are excessive, and that the judgment for that reason should be reversed. The court told the jury that the measure of damages was the difference in the market value of the property before and after the grade- of the street was lowered. As to the amount or extent of the damages, the evidence is conflicting. Plaintiff, who testified in his own behalf, put the value of the property before the change of grade at fifteen thousand dollars, and after it was made at seventy-five hundred dollars, and stated that its rental value was reduced twenty-seven dollars per month; that it was injured for the purpose of future improvements thirty-seven hundred and fifty dollars, and thirty-seven hundred and fifty dollars without reference to such future improvements.

Two other witnesses put the value of the property at about fourteen thousand dollars before the change, one of them stating that by the change its value had been depreciated fifty per cent., the other that its value per front foot had been lessened fifteen or twenty dollars per foot on Ninth street, and that it affected the improvements a good deal. Besides this evidence, certain plats and photographs were put in evidence showing the original surface of the ground on Ninth street in front of plaintiff’s property, the grade as fixed by the ordinance of March, 1879, the grade as established by the ordinance of April, 1883, the grade as actually made by defendant, and the location of the houses on the land. On the other hand, a number of witnesses on the part of defendant expressed the opinion that the property was worth as much after the street was graded as it was before.

While it might appear to us that, according to the-weight of evidence, the damages awarded are excessive,, this, under our rulings, is not sufficient to justify a *581reversal of tlie judgment, unless they are so excessiv'e as to induce the belief that the verdict was the result of prejudice, passion, or corruption. Goetz v. Ambs, 27 Mo. 28; Bank of North America v. York, 89 Mo. 369. When there is any evidence tending to sustain the finding, this court will not weigh such evidence. Bush v. Christian, 53 Mo. 483; 56 Mo. 479; 58 Mo. 429; 60 Mo. 572. In view of the evidence of plaintiff, Case, and Hutchins, andthe fact that the jury had before them, in the form of plats and photographs, the physical facts bearing upon the question of damages, it cannot be said that there was no evidence tending to uphold the finding as to the amount of damages sustained. In such a case, under the rule adopted by this court, as above cited and adhered to with great tenacity, we do not feel at liberty to interfere with the judgment on the ground that the verdict is against the weight of evidence as to the damages awarded.

The judgment is affirmed

with the concurrence of the other judges, except Ray, J., absent.