Rives v. City of Columbia

ELLISON, J. This action is for damage to plaintiffs’ property resulting from grading a street on which it abutted. The suit was brought against the defendant city and the individual defendants as mayor, street committee and street commissioner, who are charged to have aided in the work by participating and directing therein. The judgment in the trial court was for defendant city but against the individual defendants who appeal here for relief. The ground of the complaint is trespass, in that the city proceeded to excavate in front of plaintiff’s property without first ascertaining and paying the damages which would result from such work, which is charged to be a prerequisite to the right of the city to interfere with the property. And that defendants, by participating in and directing the work became co-trespassers. Municipal corporations: street grading: ordinance: damages. It appeared on the trial that there was no ordinance (although the petition stated there was) authorizing the grading, and the city was therefore properly held not Hable. Werth v. Springfield, 22 Mo. App. 12. But if there had been a valid ordinance tbe gra(Jing without first having taken measures to ascertain and pay the damage, the city would have been liable. Soulard v. St. Louis, 36 Mo. 546; Dooley v. Kansas City, 82 Mo. 444. In Werth v. Springfield, supra, and cases cited, there was no action taken of binding force on the city. But in the Soulard and Dooley cases the city acted in a manner binding upon it for the consequences of the trespass. —:—:—: liability of officers: pleading. In this case the petition, as just stated, alleges that there was an ordinance authorizing the performance of the work, and from this the individual defendants contend that no cause of action is stated against them, urge(j {s that since an ordinance [177] directing the work would render the city liable, the de-‘ fendants can not be. This does not follow. A city may, by ordinance, direct a street to be graded. If it proceeds with the work and damages property without first taking steps to ascertain and pay such damage, it is a trespasser and those actively participating in the work by directing it are co-trespassers. The fact that the city became bound for the consequences of the wrong will not exculpate other participants. We rule therefore that the petition in stating the work was done in pursuance of an ordinance did not thereby fail to state a cause of action against the individual defendants. Trial practice: right to special jury: waiver. Defendants asked a special jury by motion filed three days before the cause was set for trial. R. S. 1889, sec. 6089. They were entitled to this; but it seems by their own action justified the court in refusing it. m the statute requires the motion to be filed three days before the ease is set. This is for the purpose of giving time to summon the jury and that those summoned may have proper time and notice of the service required of them. The statute contemplates that the motion made for a special venire will be acted upon immediately, or at least in ample time that a proper jury may be had in court on the day of trial. Otherwise there would be annoying and costly delays. In this case the trial court offered to sustain the motion and order the special jury on the day preceding the trial, but defendants refused to have the motion considered although advised by the court that it would be too late after the case should be called. When the case was called, defendants then asked that the motion be sustained and a special'jury ordered.' The court very properly overruled the motion. The objection is made that there was not sufficient evidence to support the -verdict against defendants. A perusal of the record has satisfied us that the objection is not well taken. [178] municipal corporations: street grading: evidence: damages: instructions. Further objection is taken that there was improper evidence admitted as to the measure of damages in that witnesses were not confined to the difference in value of the property before and just after the work was - , , c •, done. Hiere were some statements irom witnesses, drawn out principally by defendants, as to how they made their estimate of damages which would show that they were not confining themselves to the time at which the estimate should be made. But the evidence sought by the plaintiffs and mainly given at the trial was as to the difference in value immediately before and after the work was done.' This was the true measure and though the attention of the jury was only directed in general terms by plaintiffs’ instructions to the difference in market value, yet defendants’ instructions contain the same fault and they can not complain. The point made that evidence had been admitted as to destruction of sidewalk and fence need not be passed upon, since it was withdrawn from the consideration of the jury. —:—: measure of damages: special benefit instructions. The usual instructions were given as to the general benefits which should not be allowed to reduce plaintiffs’ damages and the special benefits which should be deducted from such damage. But the defendants asked and the court refused to give an instruction to the effect that if the grading gave to plaintiffs’ property better elevation and better drainage, then such benefit was special and should be deducted from the damage notwithstanding the remaining property affected on such street and belonging to different owners received a like benefit. Ever since the cases of Newby v. Platte Co., 25 Mo. 258; Louisiana v. Pickett, 25 Mo. 535; and Railway v. Chrystal, 25 Mo. 544, it has been the rule in this state that the benefit to property which was common to all other property in the vicinity or neighborhood generally was a general benefit and could not be deducted from the damage done to the property affected; but that any ben [179] efit which was peculiar to the property itself and not enjoyed by'other property in the vicinity was special and should be deducted from the damage to be assessed. The instruction offered by defendants asked to have the benefit of elevation and drainage to plaintiffs’ lot deducted from the damages as a special benefit although the other lots along the street which were graded received a like benefit. We are of the opinion the instruction should have been given. Bailway v. Eowler, 142 Mo. 670. The excavation made in grading the street did not elevate and drain the property generally in the city of Columbia or in the neighborhood of this street. Elevation and drainage was a special advantageous effect resulting to the property along the line of the street, and although it may have been a common advantage to each lot on the street, it was nevertheless a special advantage to each lot, which was not enjoyed by the property generally in the neighborhood of the street. A special benefit does not necessarily mean such benefit as is •enjoyed by one piece of property. Many pieces, belonging to different owners, may be similarly situated with reference to an improvement 'and yet fall far short of being all the property in the vicinity. Whenever a benefit is common to all in in a vicinity, it is special to none; and it does not follow that a benefit may not be special to several without being common to all. The fact that all the property taken or injured in any given improvement receives a certain benefit does not make it a general benefit unless it is received by other property generally in that vicinity. With the exception of the refusal of the instruction on this subject the case was in all particulars properly tried. In many respects it is similar to Jacobs v. Columbia, decided last term. Before another trial it would perhaps be well to amend the petition so as not to allege that the work was done under a proper ordinance. The instructions of each party should also fix the time for finding the difference in value at, just before, and just after the grading. The judgment is reversed and cause remanded. All concur.