Naschold v. City of Westport

Ellison, J. Statement. The-plaintiff sued the defendant city for damages. The defendant interposed a demurrer to the petition for the alleged reason that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and plaintiff refusing to plead further judgment was given for defendant. The petition alleges, in substance, that plaintiff was the owner of a lot fronting on one of defendant's business streets. That he had a house on said lot, the rear portion being his residence and the front being a business house. That the front of his building was four or five feet back from the line of the street leaving that much space on his lot between the front of the house and the line of the street. That there was, up to a period of six months from the trespass complained of, a stone sidewalk thirteen feet wide. That about six months before the alleged trespass, plaintiff replaced said stone sidewalk with one of brick of equal width. That afterward defendant tore up said sidewalk and placed the curbing directly on the line of the street, thus leaving only the private space between plaintiff's house and the street. The petition in effect charges that the sidewalk was abolished and the space it occupied was thrown into the street proper. Mporadons-cor' In our opinion the circuit court erred in sustaining the demurrer. While the defendant city has jurisdiction over the sidewalks of the city, and may build and repair sidewalks at the ex-of the abutting owner, section 1592, Revised Statutes 1889, and from this [512] power may, in a proper case, reconstruct a walk, yet the abutting owner has rights which must be respected. The plaintiff had a right or easement in the sidewalk which can not be destroyed without liability to him for consequent damages. This was so held in the case of a street vacated by the city of St. Louis. Heinrich v. St. Louis, 125 Mo. 424. There is no distinguishing difference between the street proper and a sidewalk, and so we apply the same rule to each. But adjudications have been " had as to sidewalks and it has been directly held that the property owner’s rights in the sidewalk, peculiar to him over and above the general public, could not be interfered with, with impunity. Carter v, City of Chicago, 57 Ill. 283; Rogers v. Randall, 29, Mich. 41; Irving v. Ford, 65 Mich. 241. It is not necessary in this case to discuss the question of the power of the city to make reasonable alterations in the width of walks. The point of decision is that the defendant city can not abolish the sidewalk in front of plaintiff’s place of business, nor can it so unreasonably narrow such walk as to destroy plaintiff’s lights, without answering in damages. Judgment is reversed and the cause remanded. Smith, P. J., concurs, Q-ill, J., absent.