Taylor v. Kansas City Cable Railway Co.

Gill, J. — The plaintiff had judgment against the defendant, in the court below, for damages resulting to his (plaintiff’s) lot and dwelling, by reason of throwing up an embankment and raising the surface of the highway in front of plaintiff’s said property on east Ninth street, Kansas City, for the construction of a cable road. The verdict was for the sum of five hundred dollars, but the court required plaintiff to remit two hundred dollars, and a judgment was entered for the remainder, three hundred dollars, from which defendant has appealed. I. The first objection urged by the defendant is that the circuit court erroneously permitted plaintiff to show, by evidence, at the trial, the probable cost of constructing retaining walls and raising the property to conform to the new grade of the street to which defendant had brought the same. In answer to this alleged error, it is sufficient to say that, as appears by defendant’s abstract, no such objections were saved at the trial. But, even were they saved, we can but regard such as matters of proper inquiry. It is true that such items as the cost of retaining walls and cost of grading the lot, etc., do not enter directly into the computation of damages, but it seems that such matters may be shown to thereby assist the jury in arriving at an estimate of change in the market value of the premises. Such an inquiry tends [672] to enlighten the jury as to the probable effect on the value, of the property after the street has been raised above the grade elevation of the lot and premises. For example, in arriving at the real value of the-change of grade, the jury might conclude that such walls and filling in the lot, or raising the building, were-absolutely necessary to the owner to render the property available, or even salable. Such expenditures, when made, might render the property even more valuable than before; or, in the mind of the jury, the value with such expenditures made, would be the same as before the change of grade in the street. If the advantages of the change of grade, or appreciation on that account, should be found to equal or exceed the costs of such walls, grading up the lot and raising the building, then the jury would, of course, find no damage to the plaintiff and render a verdict for the defendant. So, we conclude, there was no error in the admission of such evidence. ■ II. Defendant’s counsel further object to the measure of damages as declared b‘y the circuit court. The court, in effect, told the jury that, if they found for the plaintiff, the verdict should be for such sum as would be equal to the amount that the market value of such property was diminished by such act of defendant. There is no reason to find'fault with this direction from the court. It announces the rule, in cases of this sort, as frequently declared in this state. Sheehy v. Railroad, 94 Mo. 574-580. The later case by the supreme court of Missouri, of Smith v. Railroad, 11 S. W. Rep. 259, is in no sense in conflict with the rule above announced. In that case the measure of damages was limited to what had befallen the property, in the way of loss of rental value, etc., to the time suit was brought, and for the reason that the evidence showed that the grading up of the street was only for a temporary purpose — that the [673] grade was not fixed nor anything done by the city to show that such grade was to be retained as a permanent grade. The court there inferentially admits that, in cases such as this, where a permanent grade has been fixed by such change, and the filling done in accordance with such permanent grade, that the measure of damages is the total depreciation in the market value of the inheritance. See, also, in point: Griffin v. Railroad, 6 S. Rep. 624; City of Chicago v. Taylor (U. S. Sup. Ct.) 8 Sup. Ct. Rep. 820. III. It seems to be claimed by defendant’s counsel that this cause must fail because not prosecuted under the provisions of the act of the legislature approved, March 26, 1885 (Laws, 1885, p. 47), that the remedy there provided is an exclusive remedy, etc. The defendant’s able counsel is at fault in this contention. It is sufficient to say now, that the act referred to provides for no such wrong as this, where relief is sought against an individual or a private corporation. It only applies to a settling of such controversies when the municipality is a party, and, by section 8 of the act, such proceedings as there contemplated “shall be exclusive of all other remedies in the courts of this state for the recovery from any mibnicipal corporation of damages done to private property for public use,” etc. Indeed, the entire act, and machinery there provided for settling such damages, show, beyond question, that it has no application to an action by an abutting property-owner against a railroad corporation for injuries thus inflicted. This case was fairly tried and properly submitted on instructions unobjectionable to both sides, and the judgment is affirmed. All concur.