Drake v. City of Bosworth

ELLISON, J. Plaintiff was the owner of certain real property in the city of Bosworth: He brought this action to recover damages he alleges he has sustained by reason of the city having- constructed a drain or ditch in the street along the front of a part of his property. He prevailed in the trial court. It appears that plaintiff’s property was lots 19 and 20 in block 17 and lots 16, 17 and 18 in the same block. Lots 19 and 20 were south of the other lots and separated from them by an alley which ran east and west through the block, and they faced, or abutted, the narrow way, east, on SnoAV street, running back to the center of the block, lot 19 lying lengthAvise along the alley. The other lots faced north and abutted on Missouri avenue, though lot 18 laid lengthAvise on SnoAV street. Thus Ave have lots 19 and 20 running lengthAvise east and west, facing east; and the other lots across the alley facing north, the rear ends coming down to the north side of the alley along the south side of which lot 19 extended lengthwise. Plaintiff’s residence and barn were on lots 19 and 20, and a “gallon house” and a “grist mill” owned by him Avere on the other lots across the alley. He brought this action for damages to lots 19 and 20, the residence part of his property, thus situated and occupied in block 17. The defendant city under the idea that the drain or ditch was of peculiar benefit to the property north of the alley, contends that such benefit should have been considered in arriving at the amount of the damage to be assessed to plaintiff for damages to his residence lots; and defendant objected to instructions given for plaintiff in which the jury [40] was directed not to consider any supposed benefit to the property north of the alley. Whether such benefits should have been considered is the point for decision. The damage done to one’s property in prosecuting a public work or improvement may be reduced by the benefit received by the same property from such improvement. That very general statement will not be disputed; but when it comes to applying it to a specific case there is sometimes great difficulty in .ascertaining what should be considered the same property. The damage to property should be reduced by the special benefit that property receives. How are we to ascertain whether the part benefited belongs to, or is a portion of, the part damaged? When are the two parts one body of land? The matter has been so recently dis-' cussed by the Supreme Court (Railroad v. Aubuchon, 199 Mo. 352, 363) and by this court (Burde v. St. Joseph, 130 Mo. App. 453) that we can readily state the general considerations which should govern in determining the question. The land thus divided into parts, one benefited and the other damaged, must be one general tract or piece used for one general purpose. In saying that it must be one piece it must be understood that government survey divisions, or .divisions by city plats, into different lots and blocks, will not necessarily destroy its unity. Nor will an alley or street or highway do so. Such divisions do not necessarily destroy the one genera] purpose or use to which the property was put or could have been put before the lines of division were made. [Union Elevator Co. v. Railway, 135 Mo. 353, 365; Railway v. Norcross, 137 Mo. 415, 424.] Applying this rule to the case before us, we find that the fact that the property damaged is separated by lot lines on the city plat and by an alley, from that which was benefited, does not of itself make it more than one piece of property and does not prevent the benefit to one part being subtracted from the damage [41] done another part. But the fact that the lots lying north of the alley were used for purposes separate and distinct from the use of the part south of the alley, makes the tracts distinct, so that the damage to the one and the benefit to the other cannot be considered together. The lots north of the alley, as has been stated, were used for a gallon house and grist mill situated thereon. These were wholly distinct from and wholly without connection with the residence on the lots south of the alley. Though owned in unity — that is, by one person — the purpose of their use was not single; on the contrary, was independent and apart. As said by Judge Lamm in Railroad v. Aubuchon, supra,- if the land is held as separate farms “or as a distinct home or tenement in a city, etc.,” the bare fact of contiguity will not be controlling. Objections are made to plaintiff’s instruction on the measure of damages. These are that immediately following the words “market value,” the word “value” is used without being limited by the word “market.” We regard the complaint as hypercritical. We think it could not have been misunderstood, or have misled the jury, especially in view of instructions for defendant. Then it is said that in some instances the cost of restoring property to its original condition is less than the damage if there is no restoration, and in such cases the measure of damage would be the cost of restoration instead of difference in market value before and after the wrongful act. But the difficulty with this point at this time is that at the trial it was not brought forward by defendant and does not appear in any instruction which we find in the record. Besides,, the instructions submitted by defendant adopt the identical measure submitted by plaintiff. We note the suggestion that the damages- are excessive. We think we would not be justified in interfering with the conclusion of the jury whose special province [42] was to determine the amount. [Investment Co. v. St. Joseph, 191 Mo. l. c. 172.] The judgment should be affirmed. All concur.