Slattery v. City of St. Louis

120 Mo. 183 | Mo. | 1894

Buegess, J.

This is an action for damages by plaintiff against the defendant for erecting, in front of her property, a permanent bridge, thereby impairing its usefulness and value. The petition alleges that plaintiff, in 1889, and continuously since then, was the owner of a lot of ground at the southeast corner of Twenty-first and Poplar streets, having a front of thirty feet on Twenty-first by depth of one hundred and fifty feet eastwardly along the south line of Poplar street, on which there was a substantial brick building; that the property fronted on Twenty-first and bordered on Poplar, which were unobstructed streets, sixty feet wide and open to travel; that in June, 1890, the defendant commenced, and has since prosecuted the erection of a bridge lengthwise in Twenty-first street, for the purpose of carrying the street traffic over the railway tracks in Mill Creek Yalley; that said bridge is a permanent structure composed of stone, steel and iron, and is intended to, and will, occupy said street in front of plaintiff’s premises forever, so that plaintiff is deprived of access to said street as the same existed prior to the'erection of said bridge; that the bridge occupies practically the entire width of Twenty-first street, and the eastern side of the bridge is composed of a solid wall of masonry about six feet in height, and is located within two feet west of the west line of plaintiff’s building, and runs parallel therewith along the entire front of said building, and north and south of the same.

There was no effort by defendant to agree with plaintiff as to her damages before, commencing the obstruction, nor were any steps taken under the statute for that purpose. The answer is a general denial. On a trial had before a jury, plaintiff obtained a verdict for $2,750. She subsequently remitted $258.72. The case is in this court on defendant’s appeal.

The bridge, it seems, occupied substantially near about the full width of the street, leaving only a narrow pathway of about two feet in width in front of plaintiff’s property. For the purpose of showing that the obstruction was not permanent and to limit plaintiff’s right to recovery to such damages as she may have suffered from September, 1890, until the date of the trial, defendant offered to prove that there was a proceeding pending in the circuit court for the widening of Twenty-first street in front of her property, which would make the .street twenty feet wide between the bridge and plaintiff’s building line which would take about all the plaintiff’s store,-for which she would be compensated in damages, and to which proceeding she was a party. On objection of plaintiff this evidence was excluded, and the action of the court with respect thereto, it is urged by defendant, was error.

We are unable to see what bearing the proffered evidence had upon the questions involved in this case. It seems to have been an entirely different proceeding and for an entirely different purpose, and had no tendency to show the amount of damages, that plaintiff’s property had sustained by reason of the obstruction, or that she ever would receive any compensation therefor by reason of such proceedings. At most, it was mere conjecture as to what amount for damages to her property, if any, she would be allowed as the result thereof.

Not only this, but the city under its charter had the right at any time to dismiss or discontinue the proceedings. Section 9, article 6, of the charter of St. Louis, R. S. 1889, p. 2121, provides that the city shall have the right at any time before final confirmation of the report of the commissioners to dismiss and withdraw condemnation proceedings on the payment of cost. Simpson v. Kansas City, 111 Mo. 237.

As the court did not err in excluding the evidence in regard to the condemnation. proceedings pending in the circuit court, it follows that plaintiff’s first and second instructions were properly given.

The plaintiff’s third instruction is as follows:

“If the jury believe that the building of the bridge in Twenty-first street in front of plaintiff’s premises had occasioned a loss of rent to plaintiff between September, 1890, and October 12, 1891, the date of beginning of this action, the jury will include in their verdict, if they find for plaintiff, the amount of such loss of rent as is shown by the evidence.”

The plaintiff was not entitled to recover damages to her property and at the same time damages for. the loss of rent. It is clear that if the entire property had been taken or rendered useless and of no value that she could not have recovered, in an action for damages to the property, also what it would have rented for up to the time of bringing the suit. “In an action for a negligent injury to real property, the rule of damages generally adopted is to allow to the plaintiff the difference between the market value of the land immediately before the injury occurred, and the like value immediately after the injury is complete.” 2 Shearman & Redfield on Negligence, sec. 750. To the same effect is Finney v. Berry, 61 Mo. 359. The measure of damages was the difference between the value of the property immediately before the injury and immediately afterwards as its market value was affected by reason of the erection of the bridge; Spencer v. Railroad, ante, p. 154; Kansas City v. Morton, 117 Mo. 446; Hickman v. City of Kansas, ante, p. 110.

The error in this instruction was not cured by the remittitur of the sum of $258'.72 as it is impossible to determine from the evidence what amount was allowed by the jury for damages occasioned by the loss or decrease in the rental value of the property. The judgment will be reversed and the cause remanded to be tried in conformity with this opinion.

All of this division concur.