Spencer v. Metropolitan Street Railway Co.
23 S.W. 126
Mo.
1894
Check Treatment
Burgess, J.

This wаs an action for damages to an abutting lot owner alleged to have' been caused by building the Twelfth street viaduct and cable railway line. There was a trial by jury and a verdict in favor of plаintiffs for $800. After unsuccessful motion for new trial, the case was appealed to the Kansas City court of appeals, and from that court certified to this court upon the ground that a constitutional question is involved.

Catherine Spencer was the owner of lots 5 and 6 in block 57, Turner & Company’s addition to Kansas City. The lots were in what were known as short blocks, being bounded on the north by Eleventh strеet and on the south by Twelfth street. The lots are each twenty-four feet in width and thirty-five feet in depth. The defendant was authorized by the city to build a viaduct and lay its street car line along Twelfth street. This viаduct was the ‍‌​‌​​​‌​‌​​​‌‌​‌‌​​​​​​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​​​‌‍approach to the Twelfth street incline by which the cable line runs from the ,low ground in the bottom to the bluff. The contention of plaintiffs is that this structure was a change of grade within the meaning of article 2, section 21, constitution of 1875, which provides that private property shall not be taken or damaged for public use without just compensation.

The claim of plaintiffs is that in thе construction of that part of the Twelfth street cable railway, that part of said street оn which plaintiff’s property abuts southward was totally destroyed so that it could not be used by plaintiff in connection with said lots.

*159Some of the witnesses testified as to the value of the iots before thе construction of the viaduct; and also afterwards. And some of them who were introduced on thе part of plaintiffs testified, over the objections and exceptions of defendant, as to the amount of damages plaintiffs sustained — how they were damaged, and what caused such damage.

To allow a witness to give his opinion as to the amount of damages sustained in any given case is as a general rule usurping the province of the jury; and determining for them a question of which they ‍‌​‌​​​‌​‌​​​‌‌​‌‌​​​​​​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​​​‌‍are peculiarly the judges, and for which purpose they are selected in all cases sounding in damages and where there is a trial by jury. This is the rule announced by this court in the cases of Hurt v. Railroad, 94 Mo. 255; Belch v. Railroad, 18 Mo. App. 80; White v. Stoner, 18 Mo. App. 540. And especially is this true when the inquiry is in reference to future damages. H%vrt v. Railroad, supra, and authorities cited. In the cases of Railroad v. Calkins, 90 Mo. 538, and Railroad v. De Lissa, 103 Mo. 125, witnesses were allowed to give thеir opinions as to values, after having stated their knowledge of the property, and it was held nоt to be error. The better rule seems to be that they should only state facts and leave entirely to the jury the question of damages.

• This, however, was nót reversible error in this case, as the measure of damages was fixed by instruction number 4 given on behalf of defendant, which states the damages to bе the difference in the value of the lots before the construction of ‍‌​‌​​​‌​‌​​​‌‌​‌‌​​​​​​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​​​‌‍the viaduct and immediately afterwards. The same may be said with reference to the evidence of the witnesses аs to what caused the damage, or whether or not the property was benefited. It is not revеrsible error under the facts in this case.

*160This is not .a proceeding to condemn private property for public use by the exercise of the power of the right of eminent domain, but is simply an action ex delicto, and is not like the laying of a railroad track on the surface of a street, thereby imрosing an additional servitude, or making a new and improved public use thereof — it amounts to a total destruction of the street. The street having been dedicated to public use for ordinary рurposes, could not be lawfully appropriated to another distinct and inconsistent public use. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121, and authorities cited.

While contrary opinions have been maintained with great ability in courts of other states, аnd by elementary writers of much distinction, the rule in this ■state is well established, that in cases of this kind, in estimating benefits, the jury should be restricted in estimating - such benefits, to such peculiar and direct benefits or increase of value as result ‍‌​‌​​​‌​‌​​​‌‌​‌‌​​​​​​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​​​‌‍to the lots in controversy in which other lots in the same locality do not рarticipate. The advantages to be considered by the jury are such as particularly affect the lots of plaintiffs, and are not advantages of a general nature, which the plаintiffs in common with their neighbors, whose lots are not damaged, derive from the construction of the viaduct. Lee v. Railroad, 53 Mo. 178; Hosher v. Railroad, 60 Mo. 303; Combs v. Smith, 78 Mo. 32; Railroad v. McGrew, 104 Mo. 282, and authorities cited.

The right of the plaintiffs to the use of the street adjoining their lots is as much property as the lots themselves. Lackland v. Railroad, 31 Mo. 180; Householder v. City of Kansas, 83 Mo. 488; Sheehy v. Railroad, 94 Mo. 574; Chicago v. Taylor, 125 U. S. 165; Tate v. Railroad, 64 Mo. 149.

We are unable to see even a plausible reason for complaint by defendant of the instructions of the court *161in this case, as the only instructions given as to the measure of damages were given at its request, and by the court of its own motion, which were in harmony with eаch other, and with the views herein expressed. There was ‍‌​‌​​​‌​‌​​​‌‌​‌‌​​​​​​‌‌​​‌​‌‌​​‌​‌​‌​​‌​‌​​​​‌‍no error in refusing instructions asked by defendant, as those given presented the case to the jury manifestly fairly, and remarkably favorably to defendant, and the plaintiff is not complaining. The judgment is affirmed.

All concurs