124 S.W.2d 1168 | Mo. | 1939
Lead Opinion
This cause was recently reassigned. It is an action to recover consequential damages resulting from changing the grade of a public highway. A jury trial resulted in a verdict and judgment for plaintiffs in the sum of $1375, and defendant appealed.
Plaintiffs base their cause upon Section 21, Article II of the Constitution, dealing with the taking or damaging private property for public use. Plaintiffs owned lots 15 and 16 in Yeoman addition to Midland Heights, a subdivision in St. Louis County. On these lots were a two story frame residence, a garage, and an outbuilding. The south line of these lots abuts (143 feet) on Midland Boulevard, an east and west public highway, established in 1898, and the east line abuts (143 feet, 6 inches) on Yeoman Avenue a north and south public highway, established subsequent to 1898, but date is not given. October 19, 1932, the county, acting through the county judges, entered into a contract with a construction company for the grading of Midland Boulevard. In the execution of this contract, the grade, along and by plaintiffs' lots, was raised some seven to nine feet. The construction company was made a defendant, but its demurrer to the petition was sustained, and plaintiff dismissed as to the construction company. The county filed a demurrer to the petition, but this demurrer was overruled and the county answered, admitting that it was a political subdivision of the State, and denying generally other allegations in the petition. The county filed a demurrer to the evidence at the close of plaintiffs' case, and at the close of the whole case, but these were overruled, and the cause submitted, resulting in a verdict for plaintiff as above stated.
[1] The county contends that in grading the public highway along and by plaintiffs' lots, it acted as the agent of the State and in a governmental capacity, and is not liable for the consequential damages to plaintiffs' property. Also, error is assigned on instructions given at the request of plaintiffs.
Section 21, Article 2, reads: "That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or *1035 into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. . . ." (Italics ours.)
It is conceded that there is no statute authorizing the maintenance of such suit as the present one, but plaintiffs contend that the Constitution itself is authority for the maintenance of the cause. Counties are "legal subdivisions of the State" (Constitution, Sec. 1, Art. IX), and it has been held in this State, without exception, that the county judges, in dealing with public roads, are agents of the State and not of the counties. Quite a few actions against a county for damages have reached this court, and generally it has been held that recovery could not be had. We shall review some of these cases.
Reardon v. St. Louis County,
Swineford et al. v. Franklin County,
Pundman v. St. Charles County,
Clark v. Adair County,
Moxley v. Pike County,
Tebbs et al. v. Platte County,
The court in the Tebbs case quoted from the Reardon case, supra, and then said (
State ex rel. McWilliams, Pros. Atty., v. Little River Drainage Dist. et al. (en banc),
Sigler et al. v. Inter-River Drainage Dist.,
Max v. Barnard-Bolckow Drainage Dist.,
Hill-Behan Lumber Co. v. Skrainka Construction Co.,
[2] Such a cause as here has never been permitted to be maintained in this State. The long established policy of the State, as reflected in the cases we have reviewed, and there are others, clearly is against the maintenance of such suits. Cases involving municipal corporations are not authority for the maintenance of the present cause, and this because when improving streets, etc., the municipality is acting in a private and proprietary capacity and for its own private benefit. [See Moxley v. Pike County, supra (208 S.W. l.c. 247); Zummo v. Kansas City,
In Householder et al. v. Kansas City,
The courts in other jurisdictions, with constitutional provisions in effect the same as our Section 21, Article II, have upheld suits against counties for consequential damages resulting from public improvements. However, in some instances there was an authorizing statute, or a statute construed in connection with the Constitution. [See Board of Commissioners of Logan County v. Adler,
In Commissioners of Logan County v. Adler, supra, the county, in constructing a bridge across a river, filled up some channels and thereby caused water in time of floods to back up and overflow the lands of Adler. Section 15, Article II, Constitution of Colorado, is, in effect, the same as Section 21, Article II of our Constitution. The Supreme Court of Colorado held, as we read the opinion, that the constitutional provision itself is authority for the maintenance of the suit against the county.
The courts of this State have consistently held that, absent consent of the State, its agencies cannot be sued in damages from whatever source caused, except when acting in a private or proprietary capacity as was the case in Hannon v. St. Louis County, supra.
It is our conclusion that the long established policy of this State forbids the maintenance of the present cause. Section 21, Article II of the Constitution, containing the or damaged provision, has been a part of our organic law since 1875, yet no such cause as the present one has been permitted to be maintained against the State *1041 or its agencies. It is the prerogative of the State to determine when suit may be maintained against it or its agencies and when not. The effect of the case law in this State is that Section 21, Article II of the Constitution is not in itself consent of the State to maintain this cause, and there is no statute so authorizing.
The judgment should be reversed and it is so ordered.Ferguson and Hyde, CC., concur.
Addendum
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.