51 Mo. 510 | Mo. | 1873
delivered the opinion of the court.
The main point presented by this record is the liability of a municipal corporation for damages resulting to a lot holder from improvements made under authority conferred by the city charter.
What are the rights of a lot holder in reference to the adjacent streets and alleys? The owner in fee of a tract of land, may have it surveyed into town lots, streets and alleys ; and without selling any of the lots or acknowledging the plat, he may destroy the survey and vacate the streets and alleys. But if he convey away any of the lots, the right to the free use of the adjacent streets will pass to the grantees as appurtenant to their lots; and such grantees will not only have a servitude or easement in the adjacent streets and alleys as appurtenant to the lots, but the conveyance itself would be a dedication of the streets and alleys to the public as well as to the private use of the lots. This would be the result without any statutory dedication by acknowledging and filing the plat with the county recorder. The effect of a statutory dedication however, is precisely the same. It vests in the adjacent lot holder, the right to the use of the streets as appurtenant to his lot, and this easement is as much property as the lot itself. It is a
Conceding the maxim to be just, the corollary in the comprehensive sense used in England is a non sequitur as applicable to the American States. Our governments are republican,- and are instituted for the protection of the people, in their individual rights of persons and property. These rights cannot be invaded as a mere matter of convenience to the public. It is only where the safety of the people is involved, that individual rights can be destroyed to protect the community from impending danger. Thus in great conflagrations, private houses may be torn down or destroyed tó stop the fire, and in like manner property of any kind may be destroyed to prevent the spread of contagious diseases.
The destruction of private property in such cases is an overruling necessity and is only a proper application of the right of self-defense which the people as well as individuals may resort to for their own safety. It must, however, be a supreme necessity which authorizes the destruction of private property for the safety of the people. When such necessity in fact exists the maxim “ saius populi suprema lex ” will apply and the party whose property is destroyed is without remedy — his loss being “ damnum absque injuria.” But this maxim ought not to be applied to mere matters of public convenience. The improvement of streets, drainage, sewers, &c., are in almost every instance mere matters of public convenience which the city authorities in their discretion are allowed bylaw to make. They are not matters of supreme necessity involving the safety of the people, and hence this plea is not-applicable to the case under consideration.
The city authorities are allowed to establish sewers and-to alter them from time to time, and they may establish the grade of streets, and may from timeoto time alter and re-establish such grades. These powers are not exhausted by their exercise, but are continuing powers. (See Hoffman vs. St. Louis, 15 Mo., 651; Goszler vs. Georgetown, 6 Wheat. (U. S.) 593.) But can such powers be exercised to the injury of pri
This line of argument and advice was tendered as a justificationfor refusing relief in St. Louis vs. Gurno, and was followed without inquiry in the subsequent cases of Taylor vs. St. Louis and Hoffman vs. St. Louis, ubi supra. The same course of reasoning was pursued-by the Courts of New York, Pennsylvania and Massachusetts, relied on as authorities in St. Louis vs. Gurno. (See Wilson vs. City of New York, 1 Denio, 595 ; 4 Serg. & R., 514; 9 Watts, 382; Callender vs. Marsh, 1 Pick., 418.) The same thing may be said in regard to all the American cases maintaining the doctrines laid down in St. Louis vs. Gurno.
It is a notable fact that most of the American Courts have blindly followed the rulings of the British Court in the leading case of the Governor, &c., vs. Meredith and others, 4 D. E., 794. In doing so, they have entirely ignored some of the plainest and most imperative provisions of the bill of rights
Therefore, when the legislature confers on cities the right to take private property for public use, or the authority to grade streets and make sewers, &c., the power must be taken and exercised subject to these constitutional guarantees. So that when cities, in the exercise of their undoubted powers in ■ making improvements, injure lot holders, they do so subject to the rights of the lot holders to sue them for such injuries. The legislature has no power to violate these plain provisions of the constitution; and the only proper way to construe such laws is to give them full force, allowing cities to exercise the powers conferred to the fullest extent, subject however, to the rights of a citizen to a just compensation for all injuries to his property. When such laws do not in terms provide a remedy, it is implied and may be resorted to under these provisions of the constitution.
These constitutional provisions may be looked to as entering into, and forming a part of all such laws, otherwise the courts would have to declare them unconstitutional and void.
Judge Napton, in Lackland vs. North Mo. R. R. Co., (supra) pi-edicated the plain tiff’s right of recovery on this very ground. The learned Judge speaking for the court said, “ as .to the ownei’ship of the soil of the street, the question is of no practicable importance. The right of the owner of a lot in a town to the use of the adjoining street is as much property as the lot itself, and the legislature can no more deprive aman of one than the other without compensation.” This language enunciates the true doctrine, and is in dii'ect conflict with the rulings of the same learned Judge in St. Louis vs.Gnrno, and in effect overrules the principles laid down in that case.
In my opinion the court erred in excluding the evidence offered by the plaintiff. I think the judgment ought to be
reversed and the-cause remanded.
Separate opinion of
I do not concur with the opinion of Judge Adams in overruling the case of the city of St. Louis vs. Gurno, (12 Mo., 414,)
St. Louis vs. Gfurno decides that a corporation is not liable to an action for damages consequential upon the grading and paving of a street, directed by the corporate authority, in pursuance of an ordinance authorized by its charter. The decision was made in 1849. All our subsequent rulings have conformed to it, and it has ever since been considered as definitely settling and establishing the law in this state. It would be superfluous to attempt to review the question on my part, for the remarkably clear and able presentation of the case by Judge Napton, leaves very little further to say. It may be added, however, that the decision then made was in harmony with the almost entire current of authorities, both in the English and American Courts, and that the subsequent cases up to the present time, have but tended to confirm and strengthen the doctrine.
The law on this question is settled in England, by the Supreme Court of the United States, and by the Courts of the several states, with an uniformity that makes it almost universal.
The recognized doctrine is that municipal corporations acting under authority conferred by the legislature to make and repair, or to grade, level and improve streets, if they exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to the adjoining owner, whose lands are not actually taken, for consequential damages to his premises, unless there is a provision in the charter of the corporation, or in some statute creating the liability. The eases are very numerous and are well collected in Dillon on Municipal Corporations.
In the present case the action was brought by the plaintiff against the city, to recover damages for overflowing her premises in consequence of defective and insufficient sewerage. In the petition it is alleged that defendant by its agents, era
The established doctrine in reference to the construction of sewers, is this: that where they require the exercise of judgment as to the time when, and the mode in which they shall be undertaken, and the best plan which the means at the disposal of the corporation renders it practicable to adopt, then their construction is in the nature of judicial or quasi judicial proceedings, and the corporation is not responsible for a defect or want of efficiency in the plan adopted. But when the duty as respects sewers, ceases to be judicial or quasi judicial, and becomes ministerial, then the corporation will be liable for the negligent discharge, or the negligent omission to discharge such duty, resulting in an injury to others. (See Dill. Mun. Corp., §§ 801 and 802.)
The work of constructing sewers is ministerial, and when the corporation undertakes this work, it is responsible in a civil action for damages caused by the careless or unskillful performance of the work. So it is the duty of corporations to keep sewers in repair, and if they are negligently permitted to become obstructed or filled up, so as to cause the water to flow back, and do injury, there is a liability on the part of the corporation having control over them.
Now the averments in the petition of negligence in joining the two sewers in their construction, and permitting the stoppage by the accumulation of sticks and timber, so as to cause the sewer to burst open and overflow the plaintiff’s property showed, I think, a good cause of action. For they showed a negligent discharge or negligent omission to discharge duties
For this reason, and this only, I am in favor of reversing the judgment of the lower court, and remanding the cause.