Stroker v. City of St. Joseph

Missouri Court of Appeals

Stroker v. City of St. Joseph

93 S.W. 860, 117 Mo. App. 350, 1906 Mo. App. LEXIS 68

CourtMissouri Court of Appeals

DecidedMarch 5, 1906

StatusPublished

Cited by1 cases

This text of 93 S.W. 860 (Stroker v. City of St. Joseph) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stroker v. City of St. Joseph, 93 S.W. 860, 117 Mo. App. 350, 1906 Mo. App. LEXIS 68 (Mo. Ct. App. 1906).

Pincite

Opinion

BROADDUS, P. J.

Plaintiffs, as the owners of lots 13, 14, 15, and 16 and the east ten feet of lot 17 in [352]*352block 14, in Highley’s Addition to the city of St. Joseph, seek to recover damages against the defendant city, alleged to have been caused by the grading by the latter •of Highley street, upon which said lots abutted. The trial resulted in a judgment for defendant and the plaintiff sued out this writ of error.

The lots in question have a frontage of 110 feet on Highley street and extend north to an alley and adjoin Sixteenth street. Before the grading, they were about on a level with Highley and Sixteenth streets. They were •on low ground or, as some of the Avitnesses described them, in a hollow. After the grading was completed, it appeared that the Avest part of the lots at Highley ■street Avas four or five feet below grade and at Sixteenth street fifteen feet below grade, and that on an average it Avould require from seven to eight feet fill to bring the property to a level with Highley street, Avhich Avould necessarily require a fill of fifteen feet at Sixteenth street. It was shoAvn that the slope of the lots from east to west was about ten feet and that the earth taken from the west end would have been sufficient with small expense to have made them level Avith the streets before Highley street was graded. There was evidence pro and con as to whether the value of the property had been increased or diminished before the grading of said street.

The plaintiff offered to show that it Avould be necessary in filling his lots to bring them to a grade with Highley street, to build a wall at Sixteenth street to retain a fifteen-feet fill there. For that purpose, he asked the witness, who was the city engineer, if it Avas necessary at that point. Whereupon, the court said: “How can a retaining Avail be necessary there when your witness, the plaintiff himself, says the fill on the west side there would be about three feet?” The plaintiffs’ counsel then said to the court: “I am talking about a retaining wall on Sixteenth where it would have to be filled fifteen feet.” The court then said: “You will have your remedy if they undertake to grade Sixteenth street.” [353]*353The defendant insists that what the court said was not a ruling but a mere colloquy between plaintiffs’ counsel and the judge. But we think, however, that it amounted to a denial of plaintiff’s right to enquire as to the necessity of building such a wall. It was a total denial of his right to be heard on the question. We do not see how it could have been understood in any other sense. It seems to us that the necessity, under the change of grade, to fill the lots until they should be on the same grade, also created the further necessity of building a wall to retain the fill in place at Sixteenth street, notwithstanding said street had not as yet been graded. It was a part of his damage, of which he was entitled to compensation. [Sec. 21, art. 2, Constitution.]

And if it should appear that the cost of restoring plaintiffs’ premises was less than the diminution of its market value, such cost was the proper measure of his damages; and, if the cost of restitution was more than such diminution, the latter is generally the true measure of damages, and evidence of the cost of restitution and diminution in the market value are both admissible on the question of damages to be awarded. [Smith v. Kansas City, 128 Mo. 23.]

Plaintiffs’ complaint of the- action of the court in refusing other evidence offered by him is not well taken.

The action of the court in refusing to give instruction numbered 6, asked by plaintiff, is assigned as error. As the court excluded all evidence for the necessity and cost of a retaining wall at Sixteenth street, the instruction could have served no purpose whatever in that respect. But, if such evidence had been received, as it should have been, the instruction would have been appropriate. [Smith v. Kansas City, supra.]

We can perceive no valid objection to instruction , numbered 4 given on behalf of the defendant.

For the error noted, the cause is reversed and remanded.

All concur.

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BROADDUS, P. J.

Plaintiffs, as the owners of lots 13, 14, 15, and 16 and the east ten feet of lot 17 in [352]*352block 14, in Highley’s Addition to the city of St. Joseph, seek to recover damages against the defendant city, alleged to have been caused by the grading by the latter •of Highley street, upon which said lots abutted. The trial resulted in a judgment for defendant and the plaintiff sued out this writ of error.

The lots in question have a frontage of 110 feet on Highley street and extend north to an alley and adjoin Sixteenth street. Before the grading, they were about on a level with Highley and Sixteenth streets. They were •on low ground or, as some of the Avitnesses described them, in a hollow. After the grading was completed, it appeared that the Avest part of the lots at Highley ■street Avas four or five feet below grade and at Sixteenth street fifteen feet below grade, and that on an average it Avould require from seven to eight feet fill to bring the property to a level with Highley street, Avhich Avould necessarily require a fill of fifteen feet at Sixteenth street. It was shoAvn that the slope of the lots from east to west was about ten feet and that the earth taken from the west end would have been sufficient with small expense to have made them level Avith the streets before Highley street was graded. There was evidence pro and con as to whether the value of the property had been increased or diminished before the grading of said street.

The plaintiff offered to show that it Avould be necessary in filling his lots to bring them to a grade with Highley street, to build a wall at Sixteenth street to retain a fifteen-feet fill there. For that purpose, he asked the witness, who was the city engineer, if it Avas necessary at that point. Whereupon, the court said: “How can a retaining Avail be necessary there when your witness, the plaintiff himself, says the fill on the west side there would be about three feet?” The plaintiffs’ counsel then said to the court: “I am talking about a retaining wall on Sixteenth where it would have to be filled fifteen feet.” The court then said: “You will have your remedy if they undertake to grade Sixteenth street.” [353]*353The defendant insists that what the court said was not a ruling but a mere colloquy between plaintiffs’ counsel and the judge. But we think, however, that it amounted to a denial of plaintiff’s right to enquire as to the necessity of building such a wall. It was a total denial of his right to be heard on the question. We do not see how it could have been understood in any other sense. It seems to us that the necessity, under the change of grade, to fill the lots until they should be on the same grade, also created the further necessity of building a wall to retain the fill in place at Sixteenth street, notwithstanding said street had not as yet been graded. It was a part of his damage, of which he was entitled to compensation. [Sec. 21, art. 2, Constitution.]

And if it should appear that the cost of restoring plaintiffs’ premises was less than the diminution of its market value, such cost was the proper measure of his damages; and, if the cost of restitution was more than such diminution, the latter is generally the true measure of damages, and evidence of the cost of restitution and diminution in the market value are both admissible on the question of damages to be awarded. [Smith v. Kansas City, 128 Mo. 23.]

Plaintiffs’ complaint of the- action of the court in refusing other evidence offered by him is not well taken.

The action of the court in refusing to give instruction numbered 6, asked by plaintiff, is assigned as error. As the court excluded all evidence for the necessity and cost of a retaining wall at Sixteenth street, the instruction could have served no purpose whatever in that respect. But, if such evidence had been received, as it should have been, the instruction would have been appropriate. [Smith v. Kansas City, supra.]

We can perceive no valid objection to instruction , numbered 4 given on behalf of the defendant.

For the error noted, the cause is reversed and remanded.

All concur.

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93 S.W. 860, 117 Mo. App. 350, 1906 Mo. App. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stroker-v-city-of-st-joseph-moctapp-1906.

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