Markowitz v. Kansas City

Burgess, J. This is an action for damages to plaintiff’s property alleged to have been caused by defendant by grading Jefferson street in Kansas City, from Twenty-seventh street to the southern limits of said city, under an ordinance approved May 12, 1888. The work was done under a contract dated July 12,1888. On April 19,1889, defendant passed an ordinance defining the benefit district within which property should be charged with the payment of damages occasioned by such grading. Plaintiff’s property was in said district. Prior, to the institution of this suit, plaintiff had brought a suit against defendant for the same cause of action, which he subsequently dismissed, but no point is made upon that fact in this court. Defendant, in its answer, alleged that, previous to the time of the grading, plaintiff had given a deed of trust on the property, which had been foreclosed and the property sold to a third person. A demurrer was filed by plaintiff, and sustained, to all of the allegations in defendant’s answer, except the general denial. The trial resulted in a verdict and judgment for plaintiff in the sum of $1,100, from which defendant appealed. Defendant’s first contention is that, as before this suit was brought and after the grading had been completed it had, in pursuance of the provisions of an act of the general assembly, entitled, “An act to provide for the ascertainment of, and payment for, damages done by municipal corporations to private property for public use, as directed by section 21 of article 2 of the state constitution,” approved March 26, 1885 (Laws of 1885, p. 47), and an act amendatory thereof, approved March 31, 1887, Laws of 1887, p. 37, defendant passed an ordinance prescribing the district in which property should be deemed especially benefited by the grading of said street, and prescribing a mode for the assessment and the collection of damages, sustained by prop [489] erty owners by reason thereof, the mode thus prescribed was exclusive and this action is not maintainable. In Hickman v. City of Kansas, 120 Mo. 110, which was an action for damages to plaintiff’s property, occasioned by a change of the grade of a street in-said city, by virtue of an ordinance passed in pursuance of said acts of the legislature, it was held, contrary to defendant’s contention, that the right of action being conferred by section 21, article 2, state constitution, which is self enacting, the remedy prescribed by the ordinance was not exclusive. Beace, J., speaking for the court, said: “The rule is, that, if a statute gives a remedy in the affirmative, without containing any express or implied negative, for a matter which was actionable at common law, this does not take away the common law remedy, but the party may still sue at common law, as well as upon the statute. In such cases the statute remedy will be regarded as merely cumulative. But, where a new right or the means of acquiring it are given, and an adequate remedy for violating it is given in the same statute, then the injured parties are confined to the statutory remedy.” See, also, State v. Bittinger, 55 Mo. 596; Lindell’s Adm’r v. Railroad, 36 Mo. 543; Soulard v. St. Louis, 36 Mo. 546. Over the objection of defendant a witness by the name of E. L. Noyes was permitted to testify as tending to show the value of the lot in controversy, what other lots in the same locality, just across the street, had been selling for, and in admitting this evidence it is claimed that the court committed error. There are a number of respectable authorities who hold that such evidence is inadmissible, notably: Railroad v. Heister, 40 Pa. St. 53; Railroad v. Bunnell, 81 Pa. St. 414; Railroad v. Vance, 115 Pa. St. 325; Stinson v. Railroad, 27 Minn. 284; Railroad v. Pearson, 35 Cal. 247; Matter [490] of Thompson, 127 N. Y. 463; Hunt v. Boston, 152 Mass. 168. But the great weight of authority is clearly the other way. In Town of Cherokee v. Town Lot and Land Co., 52 Iowa, 279, it was held that evidence of the price at which other tracts of land in the same neighborhood had been sold at or near the time the value was being fixed on 'the land in controversy, was admissible for the purpose of showing its value, the difference in location, character and value between them' and the tract in question being shown. See, also, Culbertson & Blair v. Chicago, 111 Ill. 651; Railroad v. Haller, 82 Ill. 208; Railroad v. Maroney, 95 Ill. 179; Shattuck v. Railroad, 6 Allen, 115; Edmands v. Boston, 108 Mass. 535; Watson v. Railroad, 57 Wis. 332; Washburn v. Railroad, 59 Wis. 364; Paine v. Boston, 4 Allen, 168; Truitt v. Baird, 12 Kan. 420. Whatever the rule may be in other jurisdictions, it was held in a recent decision of this court, Railroad v. Clark, 121 Mo. 169, which was a proceeding to condemn land for the right of way for railroad purposes, that evidence of sales of similar property to that in question in the same neighborhood made about the same time, was admissible as tending to show the value of the land sought to be condemned. Nor do we think the court erred in permitting the same witness, over the objection of defendant, to testify to bills paid by himself, and saw paid by others, toward the construction of plaintiff’s house situated on his lot, as such evidence was competent as tending to show the value of the property. A final contention is that there was error committed in giving the second instruction as to the measure of damages, inasmuch as it did not confine the consideration of the jury to the difference in value of the lot caused by the defendant. Whatever of vice in this [491] regard existed in that instruction was cured by the first instruction given at the request, of defendant, by which the jury were told that the only thing for them to determine was the difference in market value of the property after the grading, and caused solely by the grading. Taken altogether, the instructions presented the. case fairly to the jury. The case seems to have been well tried, and the judgment should be affirmed. It is so ordered. All of this division concur.