Funke v. City of St. Louis

Sherwood, J. I. The salient question presented by this record is whether the property of plaintiff has been injuriously affected in such a way as to fall within the meaning of the words “taken or damaged," used in our constitution. That her property has not been “taken” will readily be conceded. Has it been “damaged' ' within that meaning 1 The contention of plaintiff is that it has. All of the eases cited in her behalf are those where some palpable injury has resulted to the owner as the immediate consequence of the exercise of the right of eminent domain. Thus, one of the authorities on which she strongly relies is the case of Rigney v. Chicago, 102 Ill. 64, where just such a constitutional provision as our own was discussed. There, where the city constructed a viaduct or bridge on a public street, near its intersection with another street, thereby cutting off access to the first named street from the plaintiff's house and lot over and along the street intersected, except by means of a pair of stairs, whereby the plaintiff's premises fronting on the latter street and near the obstruction were permanently damaged and depreciated in value, by reason of being deprived of such access, it was held the city was liable to the plaintiff in damages for the injury. In that case, when discussing the force and effect of the word “damaged” as applied to the facts of that case, the court said: “While it is clear that the present constitution was intended to afford redress in a certain class of cases for which there was no remedy under the old constitution, yet we think it equally clear that it was not intended to reach every possible injury [139] that might be occasioned by a public improvement. There are certain injuries which are necessarily incident to the ownership of property in towns or cities which directly impair the value of private property, for which the law does not, and never has, afforded any relief. Eor instance, the building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, yet that is clearly a case of damnum absque injuria. * * * In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.” Similar views were expressed in Van De Vere v. Kansas City, 107 Mo. 83, where a plaintiff owning two residence lots, sought to enjoin the city from erecting a fire engine house on an adjoining lot; and, though it was proved that the property would be decreased in value some thirty-five to fifty per cent, by the erection of the engine house, yet it was ruled that inasmuch as it was not shown that the proposed improvement would directly, injuriously and specifically, affect either the property of the plaintiff, or some right or easement connected therewith, that the plaintiff had not brought his case within the constitutional purport or purview of the word “damaged.” Treating of the same topic, in a recent work of merit it is said: “Unless the owner is disturbed in the enjoyment of some right which he is entitled to make use of in connection with his property, he can not recover. If the loss or depreciation arises from the mere proximity of the work or improvement, as from its unsightly nature or its incongruity with the uses to [140] which the neighboring property is put, there can be no recovery.” Lewis on Em. Dom., sec. 236. Tested by the rule enunciated in the authorities cited, plaintiff has suffered no such injury in respect of her property as can afford her any basis for relief. The gist of plaintiff’s complaint and the gravamen of her grievance after all, are that the plat of “Hogan’s subdivision” was not so drawn as to extend Cottage avenue due west coincident with the north line of her property, and thus make it intrinsically far more valuable than it is at present. But, on the other hand Hogan could well say that, had Cottage avenue been extended as plaintiff desires, it would have injuriously affected Ms property in a similar way to that of which plaintiff complains. And it was but natural thatHogan in planning and platting his subdivision, should look rather to his own interest and the betterment of his own property than to that of plaintiff. II. And it was entirely competent for the city to accept and approve the plat proffered by Hogan for its acceptance, notwithstanding Cottage avenue was not projected due westward from Marcus avenue. Such act of acceptance and approval was a public municipal act, a discretionary act, an act judicial in its nature, over which the courts will not sit in review so long as no distinct legal duty has not been violated, because the exercise of such powers are necessary to good govern-; ment, and for the failure to exercise them or for their negligent or improper exercise, no liability attaches to the city, and no right of action accrues to anyone. McArthur v. Saginaw, 58 Mich. 357; Brevoort v. Detroit, 24 Mich. 322; Collins v. Mayor, 77 Ga. 745; City of Anderson v. East, 117 Ind. 126; 2 Dillon on Mun. Corp. [4 Ed.] secs. 949, 950, 966, and cases cited; Elliott on Roads and Streets, 351, 352, 374, 375, and cases cited; Murtaugh v. St. Louis, 44 Mo. 479. [141] Viewed then in any light, the case of plaintiff must be regarded as one damnum absque injuria. Therefore judgment affirmed. All concur.