Vaile v. City of Independence

Sherwood, J. Action for damages against the defendant city; petition in two counts. The first charged that the plaintiffs were the owners of a certain lot in the city, fronting on Liberty street; that they had erected thereon a large brick store-room, with the basement corresponding with the grade of the street as it had for a long time existed; that the city afterwards by certain ordinances, without consent of plaintiffs, changed and caused to be. changed the grade of the street in front of their lot and building, thereby lowering the grade some two feet, etc., to plaintiff’s damage in the sum of $2,500. The second count charges that plaintiffs were the owners of a lot in the city on Lexington street, and also the store-house thereon; that the city, by certain ordinances, changed the grade of that street in front of such property, thereby causing it to be lowered about one and one-half feet, by reason whereof said store-house was made difficult of ingress and egress, etc., etc., by which said property was damaged in the sum of $2,000. The answer to the first count was, for the most part, a general denial. To the second, defendant [336] pleaded that plaintiffs had presented a petition to the city council of defendant, praying that defendant would establish a proper grade on Lexington street in front of plaintiffs7 property, and would grade said street to the grade established; that complying with plaintiffs7 prayer, defendant established and made the change of grade of which plaintiffs now complain; that plaintiffs, when said change in grade was established and the street graded in conformity with such change, made no objection thereto, and never until the suit was filed indicated that .the change thus effected had damaged their property. Reply, general denial. I. Under the provisions of section 4942, Revised Statutes 1879, the ordinance for grading Liberty street was passed. That section relates to cities of the fourth class, and declares: “The board of aldermen shall have power, by ordinance, to levy and collect a special tax on the owner or occupier of the property, * * * on any 'street, * * * ' within such city, for the purpose of grading * * * streets, * * * in front of or along the same; and if any owner * * * of any such property, * * * shall fail * * * to grade, * * * when required by ordinance, the board of aldermen shall cause the same to be done * * * at the owner’s or occupier’s expense, and collect by a special tax bill.77 ■ The evidence in this case shows that the city did nothing but pass the ordinance and that other parties on either side of plaintiffs’ property having changed the grade in conformity to the ordinance in front of their property, that plaintiffs, in obedience to the ordinance, in about a year thereafter, changed the grade in front of their own property; and it is upon this change the first count in the petition is in part bottomed. As to that portion of the street which was graded by the street railway company, the city is not responsible; [337] cities of the fourth class possessing no power to grant such franchises to such companies. When this is the case, ultra vires is a good defense. Dillon on Municipal Corporations, Sections 457, 458, 504, 548, 935, 968. And as the city could only act by valid ordinance, the presence of the city engineer at the time the grading yas being done by the street railway company, could not create a liability on the part of the city where none existed before. And a void ordinance could confer no authority. Rowland v. Gallatin, 75 Mo. 134, and cases cited; Worley v. Inhabitants, 88 Mo. 106. The evidence to support the first count was, therefore, properly held insufficient on demurrer. In saying this, it is unnecessary to say what our ruling would have been, had the allegations of the first count stated such a cause of action as the evidence would have supported. II. The evidence offered in support of the second count was equally as insufficient as that previously mentioned, because the plaintiffs among others, signed a petition asking the mayor and board of aldermen to establish a proper grade of the streets around the public square with reference to the permanent buildings thereon, and procure the paving of the same, in conformity with the established grade, with cedar blocks, and to collect in payment therefor a special tax from the abutting property owners as provided by law. This petition plainly contemplates the establishment of the grade of the streets fronting on the public square, and the paving of the same after the grading had been done.. And any assurance made to Williamson, one of the plaintiffs, when he was asked to' sign the petition, that there would be “no cut” could not affect in any way the legal force of the words of the petition, especially so when the board was unaware of the representations made by Gudgeli. Under the ruling of this [338] court in Cross v. City of Kansas, 90 Mo. 13, all who signed the petition were estopped to claim damages from the city, for doing that which they asked to have done. Not only did they sign the petition, but they remained quiet, making no complaint during progress of the work, and then three years afterwards brought this suit. In such circumstances such an action cannot be maintained. 2 Herman on Estoppel, section 1221. Therefore, judgment affirmed. All concur.