Fuess v. Kansas City

BURGESS, P. J. This is an action for $5,000 damages, alleged to have been sustained by plaintiff by reason of the wrongful acts of defendants in raising the grade of Highland avenue in front of lots 3, 4, 5, 6, 7 and 8 in Weston’s Addition to Kansas City, of which lots plaintiff was the owner. The trial resulted in a verdict and judgment for defendants, from which plaintiff appeals. The case was tried upon the theory that if the market value of the lots was depreciated and lessened by the fill, the plaintiff was entitled to recover, by way of damages, the difference between the value of the lots prior to the change of the grade of the street and the value after such change was made; but if the benefit to the lots, if any, by the raising of the grade, more than compensated for the damages, if any, sustained, then there could be no recovery. There was evidence tending to sustain the theory upon which the case was tried, and the court instructed the jury accordingly. The principal point relied upon by the plaintiff for a reversal of the judgment is that the case was tried upon the wrong theory, and that it should have [696] been tried upon the theory that, in reducing damages in cases like this, only those benefits which are peculiar and special to the property in question, and not common or general to properties generally, can be considered or taken into account. The decisions of this court cited by plaintiff, viz., Railroad v. Chrystal, 25 Mo. 544; Railroad v. Richardson, 45 Mo. 466; Combes v. Smith, 78 Mo. 32; Railroad v. Ridge, 57 Mo. 599; Railroad v. Waldo, 70 Mo. 629; Cole v. St. Louis, 132 Mo. 633; Hook v. Railroad, 133 Mo. 313; Spencer v. Railroad, 120 Mo. 154; Hickman v. Kansas City, 120 Mo. 110; Nagel v. Railroad, 167 Mo. 89, are cases relating to proceedings to condemn property for public use, or damages to property condemned for such purpose. Such decisions are all one way and in accord with plaintiff’s contention. It has always been held by this court, however, that cases must be heard in this court and considered upon the same theory upon which they were tried in the lower court. Thus, in the case of Horgan v. Brady, 155 Mo. 659, Marshall. J., in speaking for the court, said: “The plaintiff is limited on appeal to the theory on which she tried her case in the lower court, for it would be manifestly unjust to convict that court of error in respect to matters upon which it never ruled, and upon claims of rights that were never called to its attention. This is axiomatic in appellate practice, and has been the accepted rule, certainly since 1868. [Trigg v. Taylor, 27 Mo. 245; Walker v. Owen, 79 Mo. 563; Tomlinson v. Ellison, 104 Mo. 105; Hart v. Leete, 104 Mo. 315; Minton v. Steele, 125 Mo. 181.]" It is said by plaintiff that the court, in excluding the evidence of witness Rowland as to the difference in cost in putting in foundations for buildings on this property before the grade was made and the cost afterwards, committed error. It is argued that this was one way of determining the difference in the market value of the property before and after the changing of [697] the grade, and to enable the jury to see the difference between the cost of improving the property before such change in grade and afterwards. The objection to the evidence in question was sustained on the ground that it was too indefinite, there being no intimation therein as to the dimensions of the walls and buildings which might have been, or were to be, constructed. In Robinson v. City of St. Joseph, 97 Mo. App. l. c. 508, it is said: “Nor do we think it [the trial court] erred in refusing to permit the defendant to inquire of the witnesses whether or not in their opinion if the plaintiffs had expended the amount recovered for the injuries occasioned by the grading of Penn street in the lowering of the surface of their lots and improving them that the grading of Twenty-eighth street and the alley would have injured their said lots. The pertinent question was, what was the actual market value immediately before the injury, and not what it might have been, had certain conditions existed. The latter is too speculative and theoretical, and it is not that contemplated by the rule for the ascertainment of damages in a case like this." In the case of Smith v. Kansas City, 128 Mo. 23, and upon which plaintiff chiefly relies for authority to support his said contention, the property was improved, and the question was as to the cost necessary to restore the property to the relative position it bore to the street before the change in the grade of the street was made, while in the case at bar the property was unimproved, and the estimate of costs of prospective foundations for buildings would be entirely speculative. In the Smith case conditions existed which would enable a witness to form a sound or approximately correct opinion as to the cost of necessary improvements; in this case, there was nothing save theory and airy speculation upon which to rest an opinion. [698] Another contention is that error was committed in excluding certain taxbills, issued by the city against the property in question, and offered in evidence by the plaintiff in support of the theory that the property was of some value. These taxbills were for paving and curbing in front of the property. That this evidence was not admissible for any purpose other than to show that the property was of some value we think clear. The question was not whether the property was of value, but whether it was dámaged by the acts of defendants in raising the grade of the street in front of it. In any event, the judgment should not be reversed because of the exclusion of said taxbills as evidence. Our conclusion is that the judgment should be affirmed. ' It is so ordered. All concur.