Thompson & Son v. City of Macon

ELLISON, J. This is an action for damages alleged to have resulted to plaintiffs’ property by reason of certain acts charged to have been committed by defendants. The action is against the city of Macon; the individuals composing the street committee of such city; the Chicago, Burlington & Quincy Railroad Company; and the Walsh Construction Company, who are charged to have been joint wrongdoers. It appears that plaintiffs were the' lessees of a building in which they kept a hotel in the city of Macon; — 92 — that the defendant railway passed through said city from east to west along the south line of Weed street and that plaintiffs ’ property was situated across on the north side of that street. That the railway company desired to make some improvements of its property which made it necessary to lower its tracks about twenty feet the width of its right of way of 100 feet through said city for a space of several blocks (perhaps a quarter of a mile in extent) and that the tracks were lowered that depth opposite to plaintiffs’ property. The city, by ordinance, authorized the railway company to lower the tracks as desired and in doing so it seems to have considered that the work would take thirteen feet off the south side of the street and the ordinance provided that the grade of the street should he changed that width to the depth of twenty feet; though in fact if such space of thirteen feet was a part of the street it was not in use as such and was of no benefit or service as a means of access to plaintiffs’ property. The ordinance provided that the street should be left thirty-eight feet wide which was perhaps four feet wider than as theretofore used. No consent of property-owners was obtained, nor were damages ascertained before passing the ordinance as is contemplated by section 5855, Revised Statutes 1899. The railway company let the entire contract for lowering the tracks and building a stone retaining wall to the defendant "Walsh Construction Company, and it was the actual work of that company which caused the resulting damage of which complaint is made. Making the excavation to such depth caused the earth to cave or fall in for a considerable distance into the street more or less along the full length of the cut which, if left unfilled, would have made the street permanently impassable. To fill these places (one of the longest of which was in front of plaintiffs’ building) the Walsh company laid a temporary track on the north side of the street, close up to the sidewalk, along which it had cars — 93 — filled with dirt pushed by engines. The cars were dumped into the places needing to he filled up to the street level. This track as the holes would he filled would be slided over south until the whole surface was leveled up against the retaining wall. The engines thus used in pushing and pulling the dirt cars back and forth made much annoying noise and discharged much offensive smoke and soot which found its way into plaintiff’s hotel to the damage of his curtains, carpets and furniture, as well as tending to cause plaintiff’s patrons to leave his house. The trial- court sustained a demurrer to plaintiffs’ case at the close of the evidence in their behalf as to the defendants, the city, the railway company and the street committee, and allowed the case to proceed against the Walsh company. Finally, at the close of the whole case, the court also sustained a demurrer as to that company, but afterwards granted a new trial as to it. The Walsh company then perfected its present appeal from the order granting the new trial and plaintiff appealed from the judgment in favor of the city, the, railway company and the street committee. Statements at length have been made by the respective parties hut it is thought the foregoing is sufficient to an understanding of our view of the questions presented. The evidence disclosed that whatever injury was caused by the general scope of the work, that is the work or improvement as a whole, which obstructed streets and caused inconvenience to plaintiff, was not a damage to plaintiff of any different kind from that suffered by others along the street within the limits of the work. It may he that he suffered more than some others, hut that will not alter the rule that in order to entitle him to damages, he must have sustained injury special to him and differing in kind from others. Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92; Rude v. St. Louis, 93 Mo. 408; Ruckert v. Railway, 163 Mo. 260; Nagel v. Railway, 167 Mo. 89. — 94 — It must be borne in mind that the general work or improvement made by the railway in lowering its tracks the width of its right-of-way was an improvement it had a right to make and consequently the city had a right to permit. It was proper that the city should be advised of the work that it might at least authorize the necessary interference with cross streets and take proper precautions against accidents and unnecessary injury to persons and property. And so there was no permanent obstruction' in the street, its condition since the work complained of, as compared with its condition and use prior to such work, is for the better. The only question presented by the case about which there is any doubt relates to that part of the complaint charging damages to plaintiff’s business and his furniture by reason of the track in the street and operating engines and cars filled with dirt over such track. There is no evidence which can in any fairness connect the city or the street committee with this part of plaintiff’s case. There is no pretense that the city or street committee did these things, nor that the city authorized such work, nor contemplated the emergency which arose making it necessary to fill in the holes in the street north of the retaining wall. If it be said that the time occupied in doing this extended over a period of several days and that the city at least passively permitted it to be done, it may be answered that the petition is not based on that sort of case. Nor do we see how either the railway or the Walsh company can be held answerable under any legal view which can be applied to the case made. As already stated, the work was such that the company had a right to do and the city a right to permit to be done. It happened that in doing the work of grading down to the depth of twenty feet, the perpendicular side of earth began to cave or fall off before the stone retaining wall could be built. This extended back into the street and — 95 — made it necessary that some means he devised to fill np the holes thus made. The plan adopted was effective and rapid. The work was well and speedily done. It ivas not charged to have been negligently done. There is a general statement in the petition, ‘ ‘ that the defendants on said sixth day of September, 1901, without authority of law, wrongfully and negligently hy themselves, their officers, agents and servants, cut, narrowed and graded down a portion of said Weed street thirteen feet in width and twenty feet in depth from its established grade, which portion is now solely and pe-rmanently used hy the defendant railway company, as a part of its railroad tracks, whereby said Weed street is narrowed, cut off and diminished in breadth thirteen feet. ’ ’ That charge of negligence was clearly not intended 'to characterize the work, but merely the act of reducing the ■width of the street. This is made evident by the pleader immediately proceeding, without the break of a sentence, to state, ‘ ‘ that in the prosecution of said work from the sixth of September, 1901, until- the filing of this petition the defendants wrongfully and unlawfully appropriated, occupied, dug away and totally obstructed the whole of said Weed street from Rollins street to Towner street so as to make it impossible for any vehicles and animals to pass along said street.” The hauling of dirt with locomotives is then alleged; hut in no instance is it charged that the work was negligently-done, or that the plan and devices adopted for filling up the places caved in were improper, unnecessary or inappropriate. It is manifest that the pleader relied upon the supposed unlawfulness of the work and not at all on its being negligently performed. We are, of course, aware that it does not necessarily follow that because a certain work may be lawfully done no damage can he had for doing it. Streets are lawfully changed in grade and yet money must he paid for resulting damage. But a change in the grade of a street, when damage results, is a liability against the city. In — 96 — this instance, no damage resulted' from a change of grade. The facts shown make it clear that the street was really a better and wider street after lowering of the railway company’s right-of-way than before. There is nothing of 'substance upon which to base a claim that plaintiff was injured by a. change of grade. If plaintiff suffered any legal injury it was on account of the manner and means of doing the work, and of that we have already written. A number of authorities will be found cited in plaintiff’s brief which they contend sustain their position, but in our opinion they are distinguishable in essential facts from the ease presented. It follows that the judgment in favor of the defendants, the city of Macon, the railway company, and the street committee, is affirmed. And that the order granting plaintiffs a new trial against the Walsh Construction Company is reversed and the cause is remanded with directions to also enter judgment for that defendant. The other judges concur.