Martin v. Chicago, Santa Fe & California Railway Co.
Missouri Court of Appeals
Appeal from the Linn Circuit Court. — Hon. Gr. L>. Burgess, Judge. (1) We submit that, where the petition counts on a malfeasance, an instruction which permits a recovery, .although the thing complained of was done under lawful authority, is fatal error. (2) Whether or not the construction of the embankment “impaired the usefulness of the street,” is wholly immaterial to the merits •of this action.
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Appeal from the Linn Circuit Court. — Hon. Gr. L>. Burgess, Judge. (1) We submit that, where the petition counts on a malfeasance, an instruction which permits a recovery, .although the thing complained of was done under lawful authority, is fatal error. (2) Whether or not the construction of the embankment “impaired the usefulness of the street,” is wholly immaterial to the merits •of this action. Churchill v. St. Louis, 97 Mo- 85 ; Canman v. City of St. Louis, 97 Mo. 92. When the usefulness of the street is impaired, it is a matter of public concern and not the subject of private action for…
1Opinion of the CourtSmith, P. J.
The plaintiff’s petition alleges that he was the owner of a certain lot and the improvements thereon fronting on Gracia avenue, one of the public streets in the city of Marceline ; that the defendant without authority of law wrongfully and negligently built and constructed and maintained a high and wide embankment in and upon said avenue in front of plaintiff’s ■lot, whereby said street was so obstructed that it. could not be used by plaintiff for the use of plaintiff’s said lot and improvements, by reason-of which he was damaged, etc.
The answer was first a general denial and then alleged,…
2Cases cited13 opinions
- Powers v. City of Council BluffsSupreme Court of Iowa · 1877
- Julia Building Ass'n v. Bell Telephone Co.Supreme Court of Missouri · 1885
- Rude v. City of St. LouisSupreme Court of Missouri · 1887
- Werth v. City of SpringfieldSupreme Court of Missouri · 1883
- Householder v. City of KansasSupreme Court of Missouri · 1884
8 more not listed; retrieve them via the Exa API.
3Cited by8 opinions
- St. Louis Trust Co. v. BambrickSupreme Court of Missouri · 1899
- Blankenship v. Kansas Explorations, Inc.Supreme Court of Missouri · 1930
- Stephenson v. Missouri Pacific Railway Co.Missouri Court of Appeals · 1897
- Hyde v. Minnesota, D. & P. Ry. Co.South Dakota Supreme Court · 1909
- Tegeler v. Kansas CityMissouri Court of Appeals · 1902
3 more not listed; retrieve them via the Exa API.