Jarboe v. City of Carrollton

EllisoN, J. Plaintiff was the owner of residence property within the limits of defendant city described as lots 1, 8 and 4. Lots 1 and 8 fronted on Main street and were several feet above the gTac]e 0f that street. Lot 4 fronted on Eolger street, the grade of the latter street being such as to allow free access to plaintiff’s property over lot 4. The defendant city authorized a certain street railway company to construct and maintain its track along Folger street, and in doing so the company lowered the grade of the street between ten and twelve feet, leaving embankments of that height, thus cutting off all means of going on or off of plaintiff’s property. The defendant city permitted the change in grade to be made and allowed it to remain. The evidence showed that plaintiff’s property was injured and that the injury was special and not common with other property. The verdict was for plaintiff in the sum of $600. Of this sum $200 was remitted and judgment for $400 entered. Defendant appeals. There can be no doubt of plaintiff’s right to recover under the established rule in this state. Beaudean v. Cape Girardeau, 71 Mo. 392; Rude v. St. Louis, 93 Mo. 408; Schopp v. St. Louis, 117 Mo. 131. The rule has been stated by us in several cases. Martin v. R’y, 47 Mo. App. 452; Stephenson v. R’y, 68 Mo. App. 642. The city having authorized the change, or obstruction in the street, resulting in the injury, is not entitled,to notice of its condition. Taubman v. Lexington, 25 Mo. App. 218; Golden v. Clinton, 54 Mo. App. 100; Smith v. St. Joseph, 42 Mo. App. 392. 2. It appears that plaintiff was the owner of a mill in the limits of defendant city and that the latter, for some reason satisfactory to itself, had conferred [351] upon the mill property an exemption from city taxation for a period of five years. property1 byto |rad|etaxesTet This exemption, defendant says, was illegal, and it sought to have what plaintiff should have paid as city taxes, set off against his claim. Among other reasons why this can not be allowed is that there was never any assessed valuation of the property. The amount due is unliquidated. If there is any claim in the defendant’s favor, it should be enforced by proper procedure against the property itself. The judgment was for the right party and should be affirmed. All concur.