
    MARY KETCHUM, Respondent, v. THE CITY OF MONETT, Appellant.
    Springfield Court of Appeals,
    March 9, 1916.
    1. MUNICIPAL CORPORATIONS: Public Improvements: Sidewalks: Ordinance Authorizing Liability of City. Before a city can be held liable for damages for making fills to bring the sidewalk portion of the street to grade, it must be shown that such work was authorized by the city by ordinance.
    2. -: Ordinances: Resolutions: Presumptions. Unless it is 1 shown that a' resolution authorizing the laying of concrete sidewalks was passed with the same formality observed as is required for the passage of an ordinance therefor, it will be presumed that it was not so passed.
    3. -: Change of Grade for Sidewalks: Ordinances. Action against a city for damages for making fills to bring the sidewalk portion of a street to grade. Ordinance and resolution examined . and held that the action is not justified on the ground that under the ordinance the grade of the street was changed to plaintiff’s damage, not being susceptible of the construction that the laying of the new concrete walks at the new grade was required unless no walks had been already laid.
    4. MUNICIPAL CORPORATIONS: Public Improvements: Change of Grade for Sidewalk: Damages: Measure of. In an action against a city for damages to property because of change in the grade of a street, the measure of damages is the difference between the market value of the property before and after the change.
    5. -: -: -: -: The cost of elevating the premises, removing and replacing sod, shrubs, etc., cannot be considered in ascertaining the damage to property because of change of grade of a street.
    6. -: Public Improvements: Sidewalks: Change of Grade: Damages. A property owner has no right of action against a city merely because an ordinance is passed authorizing a change of grade in the street. Such right of action arises only after the work is actually done.
    7. -: ———: -: -: Right of Action. Defendant city was proceeding with the construction of sidewalks at a new ■ .grade in front of plaintiff’s property. The fact that the plaintiff made an independent contract for the doing of the work will not defeat his right of action for damages.
    
      Appeal from Barry County Circuit Court. — Hon. Cari McNatt, Judge.
    Reversed and remanded.
    
      H. A. Gardner for respondent.
    
      T. D. Steele for appellant.
   ROBERTSON, P. J.

Plaintiff alleges that the defendant is a city of the third class; that she' was the owner of two adjoining lots fronting east on Fifth street of said city; that they were well improved and had two residences the!eon, shrubbery and lawns and a brick sidewalk in front thereof all upon the natural surface; that the defendant by two separate resolutions passed and approved by the Council of said city September 9, 1913, declared it necessary to improve said Fifth street by constructing in front of plaintiff’s property concrete curb, gutter and sidewalk; that bids were advertised for and ordinances' passed and approved October 16, 1913, accepting bids for the work and authorizing contracts for the curb and gutter and sidewalk at the established grade and under the direction and supervision of defendant’s engineer; that contracts were entered into with Gr. W.' Baldridge for the building of the. sidewalk and with L. A. Mason for the curb and gutter on the established grade; that said contracts provided for the payment for said work to be made by special tax bills issued by defendant; that the' contractors carried out the contracts by making the improvements as therein provided and tax bills were ordered issued to the con-, tractor; that the grade furnished to the contractors by defendant was about two and one-half feet above the natural surface of said lots and that said improvements were made without the city taking any steps to ascertain and assess plaintiff’s damages. The defendant answered admitting its incorporation and denying each and every other allegation in plaintiff’s petition. A jury trial resulted in a verdict for the plaintiff upon which judgment was entered and defendant has appealed.

At the trial the defendant admitted that in 1907 the grade in front of plaintiff’s property was established and the testimony discloses that this new grade was between thirteen inches or two feet abov'e the natural surface where the improvements complained of were made. The resolution concerning the sidewalk, referred to in the petition was offered in evidence and it is admitted that the resolution concerning the curb and gutter is the same except that it calls for curb and gutter instead of for sidewalk. The resolution concerning sidewalk recites: ‘ ‘ That the Council deems and declares it necessary to improve'both sides of Fifth street of said city ... by excavating, filling, preparing foundations therefor, and constructing thereon first class concrete sidewalk on both sides' of said Fifth street, . . . where such improvements are not already in or permits granted therefor.” The ordinance accepting the bid and authorizing the contract provides for the excavating, filling, etc. “except where sidewalks are already in or permits granted therefor.” The contract entered into follows the language of the ordinance.

The contractors placed the curb and gutter in front of plaintiff’s property seven or eight feet from the sidewalk, also removed the brick, made 1 such fills as were necessary to bring the curb and gutter and sidewalk to the established grade and replaced the brick walk upon such grade. On April 24, 1914, the engineer of the defendant city reported to the Council that the work had been completed according to the contract; that he had computed and apportioned the cost, giving the square feet of new concrete walk with, its total cost at twelve cents per square foot, the contract price, and also the number of square feet of “relay brick walk” with the total cost thereof at six per cent per square foot. He then apportioned the cost of the various lots and charges plaintiff’s lot with its proportional part of “relay brick.” This report was filed, adopted and approved by the council, but it is doubtful if there is anything in the he cord' tending to show that any ordinance was passed' by the city adopting this report and ordering tax bills. Ne such ordinance was offered in evidence. The city clerk was a witness for the plaintiff and he testified that when the council accepted the report of the engineer the city attorney was instructed to draft an ordinance authorizing the issuance of tax bills. The witness was then asked if he had the ordinance drawn by the city attorney as directed by the council and he replied that he did not think he had it with him. He then testified that the order made by the council was carried out and the ordinance was passed. The plaintiff’s attorney then stated that he had subpoenaed the witness to bring all the records and admitted that there were no tax bills issued against the property but that they were ordered and the plaintiff had to pay them. The court then remarked that it could be shown that plaintiff had “paid it off.” The plaintiff’s attorney replied that she had testified that she paid. As a matter of fact the plaintiff had testified that she paid for the curb and gutter but that she had not paid for the sidewalk, so we conclude from this record that the ordinance to which reference was being made was the ordinance concerning the curb and gutter.

' At the close of the testimony the ■ defendant requested the court to direct a verdict in its behalf which was refused and thereupon, at the request of the plaintiff, instructed the jury that if the defendant by its contractor constructed in front of plaintiff’s property combined curb and gutter and sidewalk under the direction and supervision of the defendant engineer and at a grade established and furnished said contractors by defendant; that said improvements were placed higher than the natural surface so as to make a material change of the grade above the natural surface and plaintiff’s property thereby •damaged, that the verdict should be for the plaintiff. Several other instructions were given upon the measure of damages.

Before the city can he held liable for damages in a case of this character for making fills to bring the .sidewalk portion of a street to an established grade it must he shown that the city by ordinance authorized it. [McGraw v. Granite Bituminous Co., 247 Mo. 549, 155 S. W. 411; Bigelow v. City of Springfield, 178 Mo. App. 463, 162 S. W. 750.] No question is raised in this case as to ratification of any improvement made, if as a matter of fact such a question •could get into a case of this character, hut the case was tried and is presented here solely upon the theory that the. city by its resolution and the ordinance accepting the contractor’s bid and authorizing the contract provided for the bringing of the street to the established grade and constructing thereon the sidewalk. It will be observed that the- resolution provided for concrete sidewalks where such improvements were not constructed. No such walk was in front of plaintiff’s lots and, therefore, the resolution would have justified the placing of a concrete walk along plaintiff’s property, but the resolution was not shown to have been adopted with the same formality as is required for the passage of an ordinance and until this is shown we must hold that it was not so passed. [Dalton v. City of Poplar Bluff, 173 Mo. 39, 47, 72 S. W. 1068.] Now, the ordinance which was passed, and the contract entered into pursuant therewith, made no provision whatever for fills or concrete walks where sidewalks were already in and. as there was a walk in front of plaintiff’s property neither the ordinance or the contract undertook to provide for the construction thereunder of any concrete or other kind. of walk in front of her property. All places where walks were in, without respect to the kind, were excepted from the ordinance and the contract. The plaintiff seeks to avoid this construction of the ordinance and contract by arguing that the exception did not apply to any and all kinds of sidewalks but that it meant only such sidewalks as would meet the demands and necessities of a properly improved street with all.walks constructed upon the established grade, but this argument overlooks the fact that the city did make the exception in unqualified terms which we are not authorized to ignore and read into the. contract something contradictory of the expressed terms thereof. It may be, as suggested in the brief of plaintiff, .that if plaintiff’s walk had not been brought to the established grade an unreasonable depression would have been left in the newly constructed walk, but this is a matter with which the city must deal in a case of this character, and not the courts. Since the ordinance upon which plaintiff relied made no provision for bringing the sidewalk to the established grade and as the doing of this constituted the material grounds of her complaint and the principal act relied upon •at the trial and submitted to the jury we must hold that the judgment must be reversed and the cause remanded.

There are other questions in this case, thought not necessary to discuss as reasons for the conclusion we have reached, which may be material in a re-trial, and we shall, therefore, notice them.

Plaintiff’s Instruction No. 2 is as follows:

“The jury are instructed that if you find for the plaintiff your verdict should be for such sum, not to exceed one thousand dollars, as you may find and believe from the evidence would equal the amount that the market value of such property was ^diminished by such acts of the defendant and in estimating the damages to said property you may take into consideration as elements of damage with other evidence in the case, the cost, if any, necessary to fill in said lots, to the. grade as changed by defendant, and raising and replacing the improvements thereon and the necessary destruction or damage of. any shrubbery or lawns that you may find and believe was on said property, allowing, however, as an offset any special benefit, if any, in the way of appreciation or increase in value, of said property by reason of raising the grade in front of plaintiff’s said property.’1’

The items of cost referred to in this instruction are properly considered “in estimating the damages of the plaintiff” (Smith v. Kansas City, 128 Mo. 23, 31, 30 S. W. 314), but they are not to be considered by the jury as “elements of damage.” In the Smith case there was an instruction similar to the one here. There the plaintiff prevailed and the defendant appealed. The Supreme Court affirmed thev judgment, but in commenting on the instruction stated that: “In plain and unmistakable terms, the jury were told in other instructions, for both plaintiff and defendant, that the plaintiff’s right to recover must be limited to the amount that they should find that the market value of the property had been depreciated by the lowering of the grade.” It was evidently considered that • the instruction was wrong, standing alone, and it is a useless and dangerous, practice to use it in its there form in a different setting, considering not only the accompanying instructions but variations in testimony.

There is some evidence in this case suggesting that plaintiff- may have had an arrangement directly with the contractor for the city for removing and replacing the walk in front of her property. If she thus undertook to do the work and it had to be done on the established grade then the liability'of the city would not he different than if the contractor had done it under his contract with the city. The mere establishing of the grade on the records of the city canses no damage, but a party “has his right of action against the city which has authorized by ordinance the change of grade, at such time as the consequent injuries become apparent and susceptible of reasonable .ascertainment. This would not be in advance of the doing of the work upon the newly-fixed grade/line.” [McGrew v. Granite Bituminous Paving .Co., 247 Mo. 549, 563, supra.] However, when substantial improvements are made by the city on the new grade and thereafter by the property owner personally or under private contract and the improvements must be at a grade established by the city which result in the change of the natural or previously established grade, then the liability of the city attaches.

The testimony in this case discloses that the roadway of the street in front of plaintiff’s property had been brought to the established grade before the curb and gutter had been put in or plaintiff’s walk changed, and consequently, if there is to bq a re-trial of this case the plaintiff should be allowed to amend her petition and try the issues, if she so elects, with all claims for change of grade for which the city is liable included therein. The city is entitled to the full advantage of. all benefits conferred upon plaintiff’s property by the improvements made in the entire street in front of plaintiff’s property for which it is liable even thongh the plaintiff does not so shape the issues as to claim damages for the change of the grade all the way across the street in front of her property.

The judgment is reversed and the cause remanded.

Sturgis and Farrington, JJ., concur.  