Broadwell v. City of Kansas

I. Sherwood, C. J. It may be. conceded at the outset that the city would not have been answerable in this.action if it were bottomed on the mere fact that consequential injuries have resulted to plaintiffs because of the grading of the street by the contractor Ilalpin. The authorities on this point, in this State, as well as elsewhere, are numer [216] ous, and many of these cited by counsel. The approved doctrine on this subject is thus succinctly stated by a writer of recognized authority. “ The eoui’ts, by numerous decisions in most of the states, have settled the law that municipal corporations, acting under authority conferred by the legislature, to make and repair, or to grade, level and improve streets, if they keep within the limits of the street and do not trespass upon or invade private property, and exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to the adjoining owner whose lands are ,not actually taken, trespassed upon or invaded, for consequential damages to his premises, unless there is a provision in the charter of the corporation, or in some statute creating the liability.” 2 Dillon Munic. Corp., § 990. But in this case the action is not for consequential damages, but for a direct and positive injury. The contractor Ilalpin, who in this behalf, was the servant of the city, did not “keep within the limits of the street.” On the contrary, he trespassed upon and invaded private property. And for this the city is clearly answerable, and to it in such circumstances the doctrine of urespondeat superior” applies. If the contractor, while confining himself to the area and boundaries of the street, had performed the work assigned him with reasonable care and skill, and in consequence thereof some indirect, some consequential injury had resulted therefrom, no action would lie, and plaintiffs would be without remedy. And to their case, according to the authorities, wrould be applicable that self-contradictory maxim of “ damnum absque injuria.” This case, however, involves no such circumstances as will admit of invoking that maxim ; the injury, as before stated, being the imme-. diate result of the wrongful act. And we think that the liability of the city and of-the .contractor may well be placed on either or both of these grounds : 1st, That the injury resulted from the work not being done with reasonable [217] care ancl skill; 2nd, That such injury resulted from the commission of a tort. What is reasonable care and skill, is, of course, largely dependent on the surroundings of each particular case, and is, therefore, a relative term. But we cannot regard that as such care and skill, which unnecessarily, not to say recklessly and wantonly, dumps on the premises of an adjoining proprietor, large quantities of earth, covering those premises many feet in depth, crushing in the walls of and destroying a dwelling house, situated some twenty feet from the street. If, upon making the fill required by the contract, it became apparent that the work could not be completed without direct injury, such as before mentioned, to an adjoining proprietor, unless a wall were built to restrain the earth within the limits of the street, then such wall should have been built, and reasonáble care and skill, as applicable in this connection, required that wall’s construction. The fact that statutory authority existed for doing the work, did not carry with it a power to directly injure or destroy the property of an adjoining proprietor. If it were necessary to make a fill in order to grade a street, and the embankment were required to be raised so high that it would become necessary, as is sometimes the ease, to make cross-embankments, or supports of either earth or stone in order to keep the principal embankment in place, no one would doubt that before the land of adjoining proprietors could be occupied by such cross-embankments? either the consent of such proprietors would have to be obtained, or else proper legal proceedings taken to condemn the required land. And there can be no essential difference in principle between occupying one’s land with earth deposited there as the incident of making the principal embankment, and doing the same thing by making a cross-embankment. If the owner of a private lot should decide to fill it with earth, the fact that he had the legal and undoubted right thus to fill his own lot up to a certain [218] level, would not give him the right in so doing to dump earth on. his neighbor’s lot, either directly or incidentally, and we do not perceive that the city has any greater rights than would a co-terminous proprietor, in similar circumstances. In a word, the maxim “ sio utere tuo ut alienum non laedas ” should govern the actions of municipal corporations as well as those of individuals. II. Moreover, section 16 of article 1 of the constitution of 1865, provided that: “No private property ought to be taken or applied to public use, without just compensation.” Here the city and its servant took the property of plaintiffs within the meaning of that,section. The taking of property within that prohibition may be either total or absolute, or a talcing pro tanto. “Any injury to the property of an individual which deprives the owner of the ordinary use of it, is equivalent to a taking and entitles him to compensation.” “ So a partial destruction or diminution of value of property by an act of the government which directly and not merely incidentally affects it, is to that extent an appropriation.” Cooley Const. Lim., (4 Ed.) 680, et seq.; Pumpelly v. Green Bay Co., 13 Wall. 166; Hooker v. New Haven & North Hampton Co., 14 Conn. 146; Arimond v. Green Bay Co., 31 Wis. 316; Ashley v. Port Huron, 35 Mich. 296; s. c., 24 Am. Rep. 552; Eaton v. Railroad Co., 51 N. H. 504; s. c., 12 Am. Rep. 147, III. So far as concerns the judgment rendered against plaintiffs on the tax-bills, we are unable to discover what relevancy such a judgment could have in the present action, since this action is for unliquidated damages, and could not have.been pleaded in answer to that suit. Mahan v. Rose, 18 Mo. 121; Pratt v. Menkens, 18 Mo. 158; Johnson v. Jones, 16 Mo. 494. Halpin might very properly recover for the work which he had lawfully done in grad [219] ing the street, and still both he and'his employer, the city, be held liable for the unnecessary and direct injury done to plaintiffs’ property, while the work was in progress. This cause was tried in conformity to the foregoing views, both in giving and in refusing instructions, and the judgment is affirmed. All concur. Motion for Rehearing Overruled.