Dries v. City of St. Joseph

BROADDUS, J. This is an action brought to recover damages to certain lots and the improvements thereon in the defendant city — incorporated, of the second class — which were the property of the plaintiff. The petition alleged that plaintiff was the owner and in possession of lots 9 and 10 and one foot four inches of the north side of lot 8 in block 56 of Patee’s addition to the defendant city, and that said lots front on the west on Fifteenth street; that Mitchell avenue ran east and west on the north side of said block, north ■and near to plaintiff’s said lots; that there was an alley which ran north and south through the center of said block on which the east end of said lots abutted, and that on said lots there were valuable improvements, etc. It is further alleged that the defendant city, under certain ordinances which had been duly passed and approved, so graded said Mitchell avenue along the north side of said block as to place an embankment of earth and dirt in said street and on the north of said lot 10 and across said alley about five feet high above the level of the former grade of said avenue and lot and the [614] foundation of the buildings thereon, thereby rendering said lots and buildings thereon inaccessible' from said alley and causing water to stand upon said lots, and the buildings thereon to be damp and unhealthy so that goods placed in the said buildings and cellar thereunder .became damaged and the health of the occupants impaired, to plaintiff’s damages, etc. The answer was a general denial. At the trial the defendant objected to the admission of evidence on the ground that the petition showed .that the plaintiff’s lots did not abut on Mitchell avenue. It was then conceded by the plaintiff that there was strip of ground forty-five feet wide between his lots and Mitchell avenue; and thereupon the court sustained the defendant’s said objection, and the plaintiff took a nonsuit with leave, etc. It was held in Bailey v. Culver, 12 Mo. App. 175: ‘1 The owner of an abutting lot has a vested right in the easement coextensive with his boundary line as a means of egress into the outer world, from any part of his lot contiguous therewith. . . . But beyond the limits of contiguity with his lot, his rights in the easement are only those of a member, of the public at large. ’ ’ Under the rule in said case, the action of the court in sustaining the demurrer to plaintiff’s case here, as made by his petition, was correct; but the rule was not well founded and has since been wholly overthrown by the decisions of the Supreme Court. “An abutting property owner on a 'street in a city has equal right with the public to use the street, and, in addition thereto, he has certain rights which are special to himself, e. g., that of ingress and egress.” Ferrenbach v. Turner, 86 Mo. 416; Glaessner v. Brewing Ass’n, 100 Mo. 508. In Corby v. Railroad, 150 Mo. 457, the distinction was clearly drawn between the rights of abutting property-owners on an alley and that of the general public, in which ease an injunction was sustained at the instance of the abutting property-owner on a certain alley restraining defendant — a railroad cor [615] poration — from constructing its track on such alley. The special contradistinguished from the general right of the public was also recognized in Schopp v. St. Louis, 117 Mo. 131, and Glaessner v. Brewing Co., 100 Mo. 508. We do not consider that the law as held in Rude v. St. Louis, 93 Mo. 408, is in conflict with the holding in the cases cited, for in that case it was held that the damages claimed by plaintiff were not special to himself, but such as were suffered by.the general public, for which reason he was not allowed to recover. In Corby, v. Railroad, supra., the court very justly made a distinction between an alley and a street. That the whole public was interested in the streets because they were contiguous and as such served a general public use, “but the alley in each block is a complete entity unto itself, and it is immaterial to the owners of property in one block whether there is án alley in the next or any other block or not, and likewise immaterial to the general public whether there are any alleys or not. ’ ’ It seems to us that it is' plain that abutting property-owners on an alley have property rights in the entire alley not shared by the general public. If the city had a right to obstruct one end of the alley in question, it had the right to obstruct both ends, and thus prevent any use whatever of the same by the plaintiff. The very statement of the proposition is sufficient to condemn it. The courts of other jurisdictions have emphasized the special property rights of abutting owners in streets and alleys, but the question seems to be so plain that further illustration is deemed wholly useless. For the reasons given the cause is reversed and remanded. All concur.