Taylor v. City of St. Louis

14 Mo. 20

Opinion

Napton, J.,

delivered the opinion of the court.

This case falls within the principle settled by this court in Gurno vs. City St. Louis, (12 Mo. R. 414.) The facts as we may assume them from the instructions are not distinguishable from the case of Callender vs. Marsh (1 Pick., 418.) The whole subject is very fully discussed in Hooker vs. New Haven & N. Co., 14 Conn. R., 146, and in the court of kings bench in the Governor and company of the British Cast Plate Manufactures vs. Meredith and others, 4 Yerger R., 794.

In the present action, the street or alley in question was laid out by the plaintiffs themselves or their ancesstor, and the probability of its being graded, when the public interest required it, must have been calculated on when the buildings were erected. To grade a street or alley, already dedicated to public use, is not an exercise of the eminent domain, so as to require compensation. It is not appropriating private property to public use, but simply an exercise of power over what is already public property. The damage resulting, by causing the plaintiffs to rebuild or prop up their falling walls is consequential, and as it is a consequence of the exercise of a power granted by the State to municipal corporations, for public purposes, and the power has not been-abused, but skilfully and discreetly exercised the city authorities are not responsible.

It is also objected in this case, that the alley in question had never been regularly declared by ordinance as a public alley, previous to the passage of the ordinance which authorized its grading. This we think was unnecessary, since the proprietors had themselves, when laying off lands as apart of the city, declared it as a public alley.

Judgment affirmed.