Hall v. City of Trenton

ELLISON, J. Plaintiff brought this action against the defendant city for damages alleged to have accrued to him by reason of injury to his property caused by the change in the grade of one of defendant’s streets. The evidence was heard and instructions submitted, whereupon the jury found for defendant and judgment was entered thereon. The plaintiff’s petition is in two counts each for a distinct injury, though each injury is alleged to have resulted from a change in the grade of the street. The first count charges that plaintiff had built certain improvements on certain property on College avenue with reference to the then established grade. That afterwards the city, by ordinance and “order,” changed such grade, the damage resulting as a consequence. The second count relates to a change of grade and establishing gutters along the sides of the street as changed whereby the waters were discharged on his property and formed into ponds, becoming stagnant, etc. There is much discussion of the various questions which are deemed of importance by counsel, but one point made in behalf of defendant seems to us to definitely settle the case in its favor and leads to an affirmance of the judgment. That point is, that there is a lack of evidence to establish that the city ever changed the grade of the street as charged in the petition. To change the grade of the street there should be an ordinance duly passed by the city council directing the change and stating the change to be made. In order to hold the city liable for damage caused in the manner this is [329] alleged to' have been caused, such city must have directed the improvement or change of grade by ordinance. Werth v. Springfield, 78 Mo. 107; Stewart v. Clinton, 79 Mo. 603; Werth v. Springfield, 22 Mo. App. 12; Maudlin v. Trenton, 67 Mo. App. 452; Thompson v. Boonville, 61 Mo. 282. Defendant offered a demurrer to the evidence at the close of plaintiff’s case and at the close of the whole evidence. The demurrer should have been sustained, but since the same result followed in the verdict and judgment no harm has resulted to defendant. It follows that the judgment was for the right party and we need not examine the other phases of • the case which have been 'argued. Affirmed. All concur.