Soulard v. City of St. Louis
36 Mo. 546
Mo.
1865
Check Treatment
Wagner, Judge,

delivered the opinion of the court.

Thе City of St. Louis has power, by its charter, “to open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve, clean, аnd keep in repair, streets,” &c.; and by the 2d section of the 4th article of its revised and amended charter, approved March 3, 1851, (Sess. Acts 1851, p. 155,) it is provided that “ whenever the city council shall by ordinance establish, open, widen, or alter any street, lane, avenue, alley, whаrf, or public square, and it becomes necessary for that purpose to take private property, and no agreement can be made with the owner thereof, the corporation shall make a just compensation therefor to the person whose property is so taken.” The section then further provides, with minuteness and detail, the manner in which property shall *552be acquired for making streets. The whole burden is devolved on the city of taking the initiative to procure the condemnation, and no provision is made by which the value can be ascertained or the 'quantity of damages assessed by the voluntary action of the owners of the property. Where the Legislature authorizes an act of this kind, the natural ‍‌‌​‌​​​​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌​​‌​​​‌‌‍and inevitable result of which will be to damage or appropriate the property of another, and at the same time points out the mode, at the election of either party, how these damages can be ascertained аnd redress obtained, the common law remedy will be taken to be superseded and the statutory remedy exclusive (Lindell’s adm’r v. Han. & St. Jo. R.R. Co., decided at this term); but where no such remedy is given at the election of the party complaining of the injury, the common law right of action remains unaltеred. In this case, the city proceeded to take and appropriate the plaintiff’s property without pursuing the mode presсribed in its charter authorizing it to enter upon and use for its own purposes the land of another whenever it should be considered necessary or expedient for the furtherance of the public interests. The act done, then, was without authority of law; it was wrongful, and amounted to a trеspass.

There is a well recognized distinction, as to liability, between the acts of a municipal corporation in the discharge of suсh legislative functions as have been delegated to it by the State, and those acts which are done by a mere private corporation in the prosecution of enterprises for its own advantage or benefit. In the former instance, no action can be maintained holding it responsible, where it is pursuing, in a legal manner, the power thus delegated to it; and this is all that is decided in the cases of Gurno v. St. Louis, Taylor v. St. Louis, and Hoffman v. St. Louis, to which we have been referred. Those cases were decided on correct principles, and we are nоt- going to disturb them. If the city authorized the property to be taken, or if, after it was so taken and appropriated to public purposes by its agents or officers, their acts were ratified and confirmed, we do not see on what prin*553ciple an exemption can be сlaimed from making reasonable compensation. To say that no liability was incurred because the taking was wrongful and not in conformity with law, аnd yet to continue to use and retain the property as a public street, and, when ‍‌‌​‌​​​​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌​​‌​​​‌‌‍payment is demanded, reply that the fee to the рremises is still in the plaintiff, as the original appropriation was tortious .and therefore no obligation arises,— seems to be arguing in a cirсle, and is equivalent to a total denial of justice.

A corporation is civilly responsible for damages occasioned by an aсt, as a trespass or tort, done at its command, by its agents, in relation to a matter within the scope of the purpose for which it was incоrporated. (Ang. & A. on Corp., § 311; Watson v. Bennett, 12 Barb. 196.)

Accordingly, it has been held that a municipal corporation will be liable, where acts are done by its authority which would warrant a like action against an individual, provided such act is done by the authority and order of the city government, or of those branches оf the city government invested with jurisdiction to act for the corporation upon the subject to which the particular act relates, or where, after the act has been done, it has been ratified by the corporation. (Thayer v. Boston, 19 Pick. 511; S. P., Smith v. Birmingham Gas Co., 1 Adolph & Ellis, 526 ; Eastern R.R. Co. v. Brown, 2 Eng. L. & E. 406 ; Underwood v. Newport Lyceum, 5 B. Mon. 130 ; Boom v. City of Utica, 2 Barb. 104.)

The city, in proceeding to takе and appropriate the property to public use, was attempting to exercise the right of eminent domain; but here the law most сarefully ‍‌‌​‌​​​​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌​​‌​​​‌‌‍and scrupulously protects individual property, and the language is that private property shall not be taken for public use withоut just compensation.

In regard to the measure of damages, it has already been prescribed by this court in Mueller v. St. Ls. & Iron Mountain R.R. Co., 31 Mo. 262, a case involving essentially the same principle. It was there held on the authority of Jones v. Gooding, 8 Mees & W. 145, that in an action for damages *554for wrongfully entering upon land and ‍‌‌​‌​​​​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌​​‌​​​‌‌‍taking and carrying away thе soil, &c., the proper measure of damages is not the actual damages sustained, but the value of the land removed ; and as the defendant has taken and appropriated to its own use the land used as a street, its fair and reasonable value will afford the criterion in estimating the damages.

It has been suggested that, as this is an action in the nature of a trespass, a judgment for the plaintiff would be no bar to the prоsecution of another action for subsequent trespasses, and that a recovery for the full value of the land now would enable plаintiff to take an unconscionable advantage, by prosecuting another suit and again recover for what he had already received compensation. We do not assent to this proposition; we are inclined to the opinion that his receiving full value for the land would ipso facto work a dedication thereof to the city. But this question is really of no importance, as the plaintiff proposes to make and delivеr a deed upon payment of the value of the property. Such being the case, the language of Judge Napton, in the case above alluded to, is peculiarly and strikingly applicable: “ If any inconvenience results to the company from their liability to repeated actions, it is the result of their own neglect to have the land condemned, as they were authorized and required ‍‌‌​‌​​​​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌​​‌​​​‌‌‍to do by their charter. A question might arise, in-the event of a second action, or in a proceeding by the company, under their charter, to obtain the title, whethеr the damages in such subsequent proceeding would not necessarily be nominal or to some extent affected by the present judgment; but as thе plaintiff proposes to make the company a deed, and considers the present suit as a final adjustment of his claim, any opinion in relation to the difficulties suggested is unnecessary.”' - ■

The judgment is reversed and the cause remanded.

Judge Holmes concurs;

Judge Lovelace absent.