This is an action for the assessment of damages and benefits to private property by reason of a change in the grade of a portion of Kingshighway Northeast, from Penrose Park to West Florissant Avenue, in the city of St. Louis.
The petition, filed November 8, 1918, names about 150 owners of property which will or may be damaged by the grading for the public improvements, and work to conform to the elevations established by the ordinances which are pleaded. William Bruecker and six other defendants answered admitting the enactment of the ordinances and the establishment of the grades as pleaded and that they are owners of abutting lots which will or may be damaged by the grading for the proposed work and public improvements. They allege that the city of St. Louis did heretofore, pursuant to the order of the Board of Public Service of said city and to ordinances duly enacted by the Board of Aldermen of said city, change the physical grade of said Kingshighway Northeast, and did thereby greatly damage the property of these defendants without first compensating them as by the Constitution and statutes of the State and the charter of said city provided; that such change of grade constituted a trespass and the defendants, William Bruecker and Nettie Bruecker, had instituted and there is now pending in the Circuit Court of the City of St. Louis an action against plaintiff for the damages arising from said trespass, and that the other above-named defendants are preparing to institute like suits to recover the damages sustained by them respectively by reason of such trespass. The other defendants did not answer or plead *Page 390 to the petition. A motion to strike out this special plea in the answer being overruled and plaintiff failing to file a reply to the answer, the court dismissed the petition as against all of the defendants. From this order plaintiff appealed.
The respondents contend that under our Constitution, statutes and the charter of the city, plaintiff was required to pay to the owners of abutting property, or into court for their benefit, consequential damages arising from a change in the grade of the street, before beginning the work, and that where the city proceeds with the work pending an action to assess the benefits and damages, the plaintiff is estopped from proceeding with the suit and the court loses jurisdiction of the action as an entirety, and it abates, not only as to the defendants pleading, but to the others as well who do not plead.
I. This was not an action to condemn private property for a street. It was admitted that the street had long been in existence and that ordinances had been enacted and appropriate proceedings taken to change the grade of theGrading Street: street and that the owners of abutting lotsProceeding to would or might sustain consequential damages asAssess Damages a result of such change of grade. Hence theand Benefits. right of the city to change the grade is not in question.
Article XXI of the Charter of the City of St. Louis relates to the condemnation of or damages to private property, real or personal, or any easement therein for public use. It provides for the appointment of commissioners to assess damages in the condemnation or the damaging of property for highways or in the change of the grade of streets; that the damages and benefits shall be assessed as of the date the ordinance became effective.
Section 6 provides: "At any time after the Commissioners file their report, the city may pay into court the amount of damages assessed, less benefits, if any, and thereupon it shall be entitled to take possession of or damage the property." *Page 391
Section 7778, Revised Statutes 1919, reads: "No street, avenue, sidewalk, alley or other public place in any city of the first class, excepting parks, parkways and boulevards, shall be graded so as to change the existing grade thereof, unless the property owners to be affected thereby petition therefor and waive all claim to damages on account thereof, or unless such damages shall be first ascertained and paid as hereinafter provided; and any special tax bills issued, for grading in violation of this law shall be void." [R.S. 1909, sec. 8692.]
There can be no doubt that this section requires damages for taking, as well as consequential damages, to be ascertained and paid before a street in a city of the first class can be graded so as to change the existing grade. [McGraw v. Paving Co.,247 Mo. 549, 570.] Notwithstanding the provisions of this section, pending the action for the ascertainment of the resulting damages, the city made the improvements pursuant to ordinances regularly enacted, which changed the existing grade. So far as this record discloses, this was done without protest on the part of the owners of abutting property.
In this case there is no taking of private property. The abutting lots were not invaded or even touched. It is admitted that the damages claimed are purely consequential. Section 8980, Revised Statutes 1919, which is applicable to the city of St. Louis, provides a procedure for the assessment of damages and benefits derived from the proposed grading or re-grading. Section 8981 provides that in case a claim or claims for damages be filed, the court shall retain jurisdiction and proceed to cause the damages or compensation to be ascertained in the manner provided by the charters of such cities or any law affecting the same.
Section 8676, Revised Statutes 1919, provides, in substance, that in all cases where the proper authorities in any city in this State have graded or re-graded or may hereafter grade or change the grade of any street or alley, causing damage to private property for public use, within the meaning of Section 21 of Article 2 of *Page 392 the State Constitution, without the consent of the owner of such property, or, in case they fail to agree with the owner thereof for the proper compensation for the damages done or likely to be done or sustained by reason therof, commissioners may be appointed to estimate and determine the damages, if any, the property has sustained, and providing the procedure.
"It [the action] may be instituted by the city authorities, or by any property owner whose property has been or is likely to be damaged by the public improvement, entirely regardless of the fact whose property has been or is to be taken for the public use, whether his own or that of someone else. The whole scope and purpose of this proceeding is to determine the amount of damages which the owner of private property has suffered or will suffer by reason of a public improvement affecting his property and providing the means of compensating him for such damage." [Albany v. Gilbert, 144 Mo. 224, l.c. 232.]
This section is remedial and is intended to meet the conditions presented by this case. It should be liberally construed. We cannot agree with respondents that the making of the improvements pursuant to the ordinances worked an abandonment of the action for the assessment of the damages or estopped plaintiff from the further prosecution thereof. Independent of the sections cited, supra, it has been held that proceedings to condemn may be instituted after the appropriation of the land, either under a special charter or the general law. [Cory v. Railroad,100 Mo. 282, 292.]
In view of the facts that this proceeding is authorized by our statutes, either before or after the completion of the work; that no one was injured by it; that it might have been commenced by the city or by the owners of the abutting property, there can be no merit in the claim that the doing of the work before the assessment and payment of the damages was an abandonment of the action, or that it estopped further prosecution thereof.
The judgment is reversed and the cause remanded for further proceedings. All concur. *Page 393