Quinn v. City of Columbia

ELLISON, J.

Plaintiffs are the owners of property abutting on one of the defendant’s streets. Defendant graded the sidewalk on plaintiffs’ side of the street by filling to the heighth of fourteen inches, and the latter brought this action, claiming that this property was damaged by thus raising the grade in its front. The judgment in the' trial court was for the defendant.

Defendant’s answer was a general denial, and also the following :

“For a further answer, defendant avers that at and prior to the alleged change of grade mentioned in the petition, the opposite side of the street from plaintiff’s property was higher than the west side thereof, where the same abuts plaintiff’s property, and that for a long space of time said east side had been improved and a sidewalk maintained at and on the natural surface thereof, and that said sidewalk mentioned in the petition was built and constructed upon the same grade used and maintained on the east side of said street, and that by reason of the premises, this construction of said sidewalk upon the grade aforesaid was not a change in the grade of said street.”

That part of the answer, just quoted, was stricken out by the court on the plaintiffs’ motion. Afterwards they objected to an.instruction embodying a hypothesis of defense as set up in the answer, on the ground that such defense was not pleaded. This is an inconsistency opposition which cannot be alloAved. [Steele v. Darner, 124 Mo. App. 388.]

But the ground upon Avhich it was stricken out was that the matter thus alleged, if a defense at all, could be admitted under a general denial, in other words, was a matter that did not need to be specially pleaded. In keeping with this theory, evidence Avas admitted in defendant’s behalf, going to shoAV a state of facts like those set up in the stricken pleading. And further along, the trial court instructed the jury, in effect, that if these matters were believed, a defense was made out and plaintiffs did not have a case.

Defendant’s position, then, is this: That no matter what difference in' the level of the ground on the two sides of a street, if a grade lias been established and made, on one side, there can be no damage of which the law will take notice to the property on the other side in bringing it np to, or cutting it down to, the grade of the side first established. Thus, if from one side of a street to the other there was a sharp or precipitous fall of, say, twenty feet, and a grade for sidewalks was.made along the natural surface on the high side, which, to bring to a common level, would require a fill of twenty feet on the low side, that when such fill was made no damage to the property on the low side would follow.

We do not think it would be just or safe to establish that as an arbitrary rule; nor do we find that the case of Davis v. Ry. Co., 119 Mo. 180, is authority for such rule. If there is a material change of grade from the natural surface, the abutting property owner had redress in damages. [Hickman v. Kansas City, 120 Mo. 110; Smith v. St. Joseph, 122 Mo. 643; Cole v. City of St. Louis, 132 Mo. 633.]

The foregoing makes it unnecessary to notice.some other causes stated for reversal. The judgment is reversed and the cause remanded.

All concur.