Heidorn v. City of Kirkwood

CAULFIELD, J. (after stating the facts).— Though, perhaps, the petition contains statements of legal conclusions to the contrary, the argument here seems to concede that it is not to be construed as charg [160] ing that any of the defendants actually — that is physically — changed the grade, hut that, whatever was done in that respect, was done by plaintiff, she being compelled thereto, according to her theory, by the ordinances, notification and advertisement mentioned in the petition. We will proceed according to that construction, and in doing so we are unable to avoid the conclusion that the demurrers, were properly sustained. The mere passage of the ordinance establishing a different grade did not give plaintiff a cause of action (Kroffe v. Springfield, 86 Mo. App. 530; Rives v. City of Columbia, 80 Mo. App. 173), and it does not appear that any of the defendants did anything besides that, other than to call upon plaintiff to build the sidewalk according to the changed grade and to threaten to do it at her expense if she did not. Beyond that they were passive. The actual change of grade was accomplished by plaintiff herself. Now, the mere threat to change the grade was not an actionable private wrong. [1 Cooley on Torts (3 Ed.), p. 34.] Plaintiff’s remedies were to prevent by injunction the threatened trespass (Graden v. Parkville, 114 Mo. App. 527, 90 S. W. 115), or to await the consummation of it and then sue for damages; a change of grade without first compensating the owner being deemed a trespass. [Rives v. City of Columbia, 80 Mo. App. 173.] She could not piece out a mere nonactionable threat so as to make it actionable, by doing herself the threatened injury. Nor can it be justly claimed that she was compelled by duress to damage her own property. Though it is alleged that an ordinance made it a misdemeanor for an owner to construct a sidewalk upon any other grade than that established by the city, it is not alleged that there was any which penalized a refusal to construct, any sidewalk or a refusal to change the grade. At the most, the defendants threatened to change the grade of the sidewalk if plaintiff did not. To recover damages for having injured [161] herself hy reason of a threatened injury to her property, it must at least appear that plaintiff injured herself in an endeavor or with a purpose to escape from or prevent the thing which was threatened. [See Kraemer v. Duestermann, 35 N. W. (Minn.), p. 276, and cases cited.] Now, what plaintiff did was not done in any such endeavor or for any such purpose. Instead of trying to escape or prevent the threatened thing, she did the thing herself. It cannot be assumed as matter of law that defendants would have done the thing threatened any differently than she did it. [State ex rel. v. St. Louis, 158 Mo. 505, 59 S. W. 1101.] We are of the opinion that the demurrers were properly sustained and that the judgment should he affirmed. It is so ordered. Reynolds, P. J. and Nortoni, J., concur.