In Hill-Behan Lumber Company v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, the Commission changed the grade within confines of the right of way to inconvenience of abutting owner and the court held, absence statute, no damages were authorized.Summary of this case from State v. Brockfeld
March 13, 1941.
1. PRIVATE PROPERTY FOR PUBLIC USE: Compensation. Where plaintiff sued for consequential damages resulting from the building of a viaduct on the State Highway adjacent his land on which he maintained a lumber yard, although Section 21, Article II of the State Constitution provides that private property shall not be taken or damaged for public use without just compensation, plaintiff could not recover under Section 8102, Revised Statutes 1929, which provides that counties may sue and be sued in certain instances, but makes no provision for the payment of damages when caused to abutting owners by the change of grade of a public highway.
2. PUBLIC HIGHWAYS: Governmental Function. The opening, construction and maintenance of public highways is a governmental function, whether done by the State directly or by one of its municipalities, and absent an authorizing statute, a suit for damages for the building of the viaduct adjacent plaintiff's property by the State Highway Commission, cannot be maintained.
If plaintiff has sustained damages by the building of the viaduct adjacent his property, such damages are damnum absque injuria.
Appeal from Circuit Court of St. Louis County. — Hon. John A. Witthaus, Judge.
AFFIRMED AND REMANDED ( with directions).
Jacob M. Lashly, Arthur V. Lashly and Frank E. Alwood for appellant.
(1) The court erred in sustaining defendant's motion for a new trial because plaintiff's private property was damaged for public use without just compensation, within the meaning of Section 21, Article II, of the Constitution of Missouri, which forbids that such be done. Sec. 21, Art. II, Mo. Const. (2) Plaintiff-appellant is an abutting landowner and has rights of ingress and egress appurtenant to such land over the highway in question, which rights constitute private property. 45 A.L.R. 537; 47 A.L.R. 902; 2 Elliott on Roads Streets (3 Ed.), sec. 882, p. 1153; 29 C.J., p. 517, sec. 263, notes 63-66; Rude v. St. Louis, 93 Mo. 408, 6 S.W. 257; Heinrich v. St. Louis, 125 Mo. 427, 28 S.W. 626; McQuillin on Municipal Corps. (2 Ed.), sec. 1526; Ver Steeg v. Wabash Ry. Co., 250 Mo. 61, 156 S.W. 692; Siemers v. St. Louis Elec. Term. Ry. Co., 125 S.W.2d 868, 343 Mo. 1201. (b) These property rights of abutting owners exist whether the highway and abutting property are located within or without the boundaries of a municipality. 75 L.R.A., p. 50; Pearsall v. Eaton County, 74 Mich. 558, 4 L.R.A. 193, 42 N.W. 77; 1 Lewis on Eminent Domain (3 Ed.), secs. 120, p. 178, and sec. 205, p. 386; Robinson v. Springfield Southwestern Ry. Co., 126 S.W. 994, 143 Mo. App. 270; Barham v. Grant, 185 Ga. 601, 196 S.E. 45; Morris v. Coving County, 118 Miss. 875, 80 So. 337; Delaware County v. Wakeman, 168 Misc. 644, 6 N.Y. Supp.2d 167; Adams v. Grapotte, 69 S.W.2d 462; Dudding v. White, 82 W. Va. 542, 96 S.E. 942; Pearsall v. Board of Supervisors, 74 Mich. 558, 42 N.W. 77; Jones Island Realty Co. v. Middendorf, 191 La. 456, 185 So. 881. (c) There is no distinction between defendant and a municipality under this constitutional provision. St. Louis v. Gurno, 12 Mo. 419; Zoll v. St. Louis County, 124 S.W.2d 1172, 343 Mo. 1031. (d) The record abundantly shows that, in ordering, constructing and maintaining the viaduct, defendant substantially destroyed plaintiff's rights of ingress and egress in his private property, but, even if plaintiff's damages be deemed consequential, as distinguished from direct, damages, these property rights are within the protection of this constitutional provision, and plaintiff is entitled to compensatory damages. State ex rel. Becker v. Wellston Sewer Dist., 58 S.W.2d 992, 332 Mo. 547; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 943; Hill-Behan Lbr. Co. v. Skrainka Const. Co., 341 Mo. 156, 106 S.W.2d 486. (2) Just compensation is an element of "due process." Although the constitutional prohibition against the taking of property without "due process" of law contained in Amendment XIV, Section 1, of the Federal Constitution, which operates as a limitation upon the states, does not expressly mention compensation, "just compensation," made or secured, is required as an element of "due process" of law with respect to the taking of private property, or any of its attributes, for a public use. Consolidated Turnpike Co. v. Norfolk Ocean View Ry. Co., 228 U.S. 326, 57 L.Ed. 857; McCoy v. Union Elevated Railroad Co., 247 U.S. 357, 62 L.Ed. 1156; Roberts v. New York City, 295 U.S. 264, 79 L.Ed. 1429; State ex rel. Carter v. Harper, 188 Wis. 148, 196 N.W. 451; Marin Mun. Water Dist. v. Marin Water Power Co., 178 Cal. 308. (3) Any substantial interference with the use of the land constitutes a "taking" of property within the meaning of the "due process" clause of the Federal Constitution. Where, as here, the evidence shows that the construction of a public improvement by the State upon a highway results in a substantial interference with the common, ordinary and best use of the adjacent land, such interference constitutes a "taking" of property, although there is no physical invasion of the land itself, and the "due process" clause of Amendment XIV, Section 1, of the Federal Constitution providing "nor shall any State deprive any person of life, liberty or property, without due process of law," requires that the State pay compensation therefor to the abutting owner. U.S. Const., Amendment XIV, Sec. 1; Pumpelly v. Green Bay Miss. Canal Co., 173 Wall. 166, 20 L.Ed. 557; Averne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 591; State Road Commission v. District Court, 94 Utah, 384, 78 P.2d 504; Morrison v. Clackamas County, 141 Or. 564, 18 P.2d 814; In re Forsstrom, 44 Ariz. 472, 38 P.2d 878. (4) State Highway Commission is suable. Where, as in the instant case, the evidence shows that an abutting landowner's property has been "taken" or "damaged" by a State highway commission or any other governmental agency for public use without just compensation within the meaning and intent of those words as employed in Article II, Section 21, of the Missouri Constitution, such a governmental agency is suable therefor in an action at law instituted by the landowner to recover just compensation and the doctrine that a governmental agency is ordinarily "immune from suit" is not available as a defense. Mo. Const., Art. II, Sec. 21; R.S. 1929, sec. 8102; Hill-Behan Lbr. Co. v. Skrainka Constr. Co., 341 Mo. 156, 106 S.W.2d 485; State ex rel. State Highway Comm. v. Bates, 317 Mo. 619, 296 S.W. 418; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 939; State ex rel. v. Daues, 322 Mo. 376, 15 S.W.2d 815; State ex rel. St. Louis v. O'Malley, 122 S.W.2d 940; Robinson v. Poplar Bluff, 293 S.W. 503; Campbell v. Arkansas State Highway Comm., 183 Ark. 780, 38 S.W.2d 753; Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 843; Perkerson v. State Highway Board, 56 Ga. App. 316, 192 S.E. 475; Dunne v. State, 162 Md. 274, 159 A. 756; Kentucky State Park Comm. v. Wilder, 260 Ky. 190, 84 S.W.2d 38; Jefferson County v. Bischoff, 238 Ky. 176, 37 S.W.2d 24; Pelt v. Louisiana State Live Stock Sanitary Board, 178 So. 644; Arkansas State Highway Comm. v. Butler, 105 F.2d 732; 20 A.L.R. 516-520. Louis V. Stigall and Wilkie Cunnyngham for respondent.
(1) Plaintiff's real complaint is not that its access to the highway has been cut off or decreased, but rather that, after it has gained access to the highway, it has to drive a few feet farther from three of its entrances in order to get onto the viaduct to go east over the railroad tracks or has to make two left-hand turns, instead of one right-hand turn, to get to these three entrances when coming from the east. After traffic has gained access to a highway or street, its regulation or control under the police power of the State gives no cause of action. Jones Beach Blvd. Estate v. Moses, 268 N.Y. 362, 197 N.E. 313, 100 A.L.R. 487; Gilsey Buildings, Inc., v. Incorporated Village of Greatneck Plaza, 11 N.Y.S. 694; Cavanaugh v. Gerk, 313 Mo. 375, 280 S.W. 51. Even if there had been an interference with (but not a total destruction of) plaintiff's access by a change of grade in a highway outside of a municipal corporation no cause of action would have been created. Any damage from such a change of grade would be damnum absque injuria — damage without legal fault or injury. The mere fact that one may suffer actual financial damage does not necessarily give him a cause of action against some one else. He has a cause of action against some defendant only where he, as plaintiff, has a legal right; the defendant owes him a legal duty or obligation; and the defendant violates plaintiff's right. Before plaintiff has a cause of action he must be able to put his finger on some legal right which he has and which the defendant had violated. 1 C.J. 964-966, secs. 57-59; 17 C.J. 718, sec. 54; Anderson v. Inter-River Drain. L. Dist., 309 Mo. 189, 274 S.W. 448. (2) Article II, Section 21 of the Missouri Constitution created no new rights or duties in substantive law — it deals only with remedies in adjective law. It did not purport to create private property or legal rights where none existed before in order that they might be "taken" or "damaged." Bush v. State Highway Comm., 329 Mo. 843, 46 S.W.2d 854; Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168; Sigler v. Inter-River Drain. Dist., 311 Mo. 175, 279 S.W. 50; Collier v. C. A. Ry. Co., 48 Mo. App. 401; Thompson v. C., M. St. P. Ry. Co., 137 Mo. App. 68, 119 S.W. 509; Gaus Sons Mfg. Co. v. St. Louis, K. N. Ry. Co., 113 Mo. 308; Scott v. Marshall, 110 Mo. App. 183, 85 S.W. 98; Gamble v. Pettijohn, 116 Mo. 379, 22 S.W. 783; McCulloch Co. Electric Co-Op. v. Hall, 131 S.W.2d 1019; Union Elevator v. K.C. Belt Ry. Co., 135 Mo. 353, 36 S.W. 1071; Tate v. State Highway Comm., 226 Mo. App. 1216, 49 S.W.2d 282. The dedication of right-of-way to public highway purposes gives the public the right to do in the road whatever may be found necessary to properly serve the needs of highway traffic. Broadwell v. City of Kansas, 75 Mo. 213; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258; Sauer v. New York, 206 U.S. 536, 27 Sup. Ct. 686, 58 L.Ed. 1176; Zoll v. St. Louis County, 343 Mo. 1031; Grover v. Cornet, 135 Mo. 29, 35 S.W. 1145; State ex rel. State Highway Comm. v. Bailey, 115 S.W.2d 17; State ex rel. State Highway Comm. v. Cox, 336 Mo. 281, 77 S.W.2d 220; Riggs v. Springfield, 344 Mo. 420, 126 S.W.2d 1144; St. Louis K. N.W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192; Moss v. St. Louis, I.M. S. Ry. Co., 85 Mo. 89; Hutchings v. Wabash Ry. Co., 224 Mo. App. 1124. Offsetting or balancing against the increased demands of the public on the highway, with the passage of time, are the increased demands upon, and uses of, the highway by the abutting landowner which inflate his damage when interfered with. Sears v. Crocker, 184 Mass. 587; Handlan v. McManus, 42 Mo. App. 551; Carpenter v. Reliance Realty Co., 103 Mo. App. 489; McGrath v. St. Louis, 215 Mo. 210. (3) Cases involving municipal corporations are not authority for the maintenance of the present cause. Zoll v. St. Louis County, 343 Mo. 1031; Morley v. Pike County, 276 Mo. 449, 208 S.W. 246; Burow v. St. Louis Pub. Serv. Co., 100 S.W.2d 270.
John B. Pew and Rufus Burrus for Jackson County, amicus curiae.
Section 21, Article II, of Missouri Constitution does not give a right to sue an agent of the State of Missouri for any reason. Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 274; Sauer v. New York, 206 U.S. 555, 51 L.Ed. 1185; Zoll v. St. Louis County, 124 S.W. 1173, 343 Mo. 1031; Secs. 8111, 8116, 8119, 8120, R.S. 1929; In re Forsstrom, 28 P.2d 886; Callender v. Marsh, 1 Pick. 418; City of Pontiac v. Carter, 32 Mich. 164; Wilson v. Portland, 285 P. 1930; Calhoun v. State Highway Public Work Comm., 208 N.C. 424, 181 S.E. 271; McClintock v. Richlands Brick Corp., 145 S.E. 431; Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 110 P. 237, 36 L.R.A. 666; Hoffer v. Reading Co., 287 P. 120, 134 A. 416; Harvey v. Hunnington, 136 S.E. 840; Cooper v. State Highway Comm., 143 A. 3; Sommer Co. v. State Highway Comm., 148 A. 172; Vannoy v. Borough of Pennington, 152 A. 785; Soldiers' Sailors' Memorial Bridge on State Street in the City of Harrisburg, 162 A. 311, 308 Pa. 487.
This is an action for consequential damages resulting to plaintiff's property from the building of a viaduct in a State highway. The jury returned a verdict for plaintiff for $42,500. Motion for new trial was sustained on the ground that the court erred in refusing to direct a verdict for defendant at the close of the whole case, and plaintiff appealed.
Plaintiff owns 26.38 acres of land in St. Louis County, not in any incorporated town or city. The tract is bounded on the east by the Wabash railroad, and on the south by Page Avenue (also called Page Boulevard), a State highway, 100 feet in width. Page Avenue, in front of plaintiff's land, was dedicated as a public road, 100 feet in width, in 1870, and has so remained. Plaintiff purchased the east portion (7.15 acres) of the tract in 1916, and the remainder (19.23 acres) in 1923. On the tract, and practically since purchase, plaintiff has conducted a wholesale and retail lumber and building supplies business. The buildings, sheds, etc., used in connection with the business, front, from the east end of the tract, about 450 feet on Page Avenue. In 1931, fifty-six feet in the center of Page Avenue along by plaintiff's land was paved with concrete and such was the condition in 1935, when the State Highway Commission caused to be constructed a viaduct, 42 feet in width, in the center of Page Avenue, and in front of plaintiff's improvements. The viaduct commenced about 450 feet west of the east line of plaintiff's tract, and extended east, gradually increasing in height, and reaching a height of about 22 feet at the east line of plaintiff's tract of land, then passed over the Wabash tracks and down to the street level. There is a ramp on each side of the viaduct.
Plaintiff's theory of recovery was given in its main instruction which told the jury that the Constitution (Sec. 21, Art. 2) provides "that private property shall not be damaged for public use without just compensation; . . . that the use to which the viaduct, constructed under authority of defendant, in and over Page Boulevard and running over the Wabash railroad tracks and in front of and adjacent to plaintiff's property mentioned in the evidence is a public use, and if you believe and find from the evidence that said viaduct, as constructed and used upon said Page Boulevard, has resulted in an elevation of the grade of Page Boulevard in front of plaintiff's said property and that the means of ingress and egress to and from said property have thereby been obstructed or impaired, and if you further believe and find from the evidence that plaintiff's said property has suffered damages as the direct and proximate result of said construction and grade elevation, and that such damages, if any, were not otherwise compensated for by special benefits, if any, accruing to plaintiff's property by reason of the viaduct, then and in that event, your verdict should be in favor of the plaintiff and against the defendant" (italics ours).
Also, the jury was instructed that if they found for plaintiff, the damages would be measured by "the difference, if any, between the market value of plaintiff's property (real estate) . . . immediately before the construction of the viaduct and change of grade on Page Boulevard in front of and along plaintiff's property . . . and the market value of said property immediately thereafter." And the jury was also instructed that, in determining the market value "after the construction of the viaduct and the change of grade," they might take into consideration the extent, if any, to which means of ingress to and egress from plaintiff's property were obstructed or impaired by the viaduct and change of grade.
Section 21, Article 2 of the Constitution is a part of our Bill of Rights and first appeared in its present form in the Constitution of 1875. Including the purpose clause, common to all sections of the the Bill of Rights, Section 21, Article 2, so far as pertinent here, is as follows:
"In order to assert our rights, acknowledge our duties, and proclaim the principles on which our government is founded, we declare: That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested" (italics ours).
Plaintiff is an abutting owner on the highway and contends that under the or damaged provision of Section 21, Article 2, Constitution, recovery can be had. Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168, like the present case, was based on Section 21, Article 2 of the Constitution, and was for consequential damages resulting from the change of grade of a public highway. The facts in the Zoll case were these: The Zolls owned two lots in St. Louis County, but not in any incorporated town or city. These lots abutted on a public highway established in 1898. In 1932, the county, acting through the county judges, caused the grade of the highway along by the lots to be raised some 7 to 9 feet. In that case we pointed out that county judges, in dealing with public roads, are agents of the State and not of the counties, and after reviewing quite a number of cases and calling attention to the fact that there was no statute authorizing such suit we held that the Zolls could not recover.
Plaintiff, however, says that Section 8102, Revised Statutes 1929, 10 Ann. Stat., p. 6889, provides that the State Highway Commission "may sue and be sued," and that therefore, there is statutory authority for the present suit. So can counties sue and be sued in many instances, but absent an authorizing statute, a county cannot be sued for changing the grade of a public highway as was ruled in the Zoll case, supra, and there is no authority to support the contention that Section 8102 authorizes such suit as here. By an authorizing statute, we do not mean such statute as Section 8102, but a statute specifically providing for the payment of damages when caused to abutting owners by the change of grade of a public highway.
The cases from this State, chiefly relied on by plaintiff, concern municipal corporations, but as we pointed out in the Zoll case ( 343 Mo. 1031, 124 S.W.2d l.c. 1172) such cases are not authority for the maintenance of such cause as here because the municipality, in changing the grade of a street, "is acting in a private and proprietary capacity and for its own private benefit." And it would seem that such suits against municipal corporations would not lie except for express authority. In 3 Dillon on Munic. Corps. (5 Ed.), p. 1820, sec. 1152, it is said:
"The law is settled . . . that, unless expressly so declared by special constitutional provision, or by charter or statute, a municipal corporation is not liable to property owners for the consequential damages necessarily resulting from either establishing a grade or changing an established grade of streets."
Such statutes as mentioned by Dillon have long existed in Missouri. Section 6275, R.S. 1929, 8 Ann. Stat., p. 5259, applicable to cities of the first class provides: "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 claims to damages on account thereof, or unless such damages shall be first ascertained and paid as hereinafter provided."
For cities of the second class, see Secs. 6628, 6648, R.S. 1929, 8 Ann. Stat., pp. 5543, 5544, 5555, and Guaranty Savings Loan Assn. et al. v. City of Springfield, 346 Mo. 79, 139 S.W.2d 955. And for third and fourth class cities, see respectively, Secs. 6849, 7062, R.S. 1929, 8 Ann. Stat., pp. 5656, 5781.
State ex rel. State Highway Commission v. Bailey et al. (Mo. App.), 115 S.W.2d 17, was in condemnation. The defendant landowners (appellants), among other assignments, complained of plaintiff's Instruction 14. Of this assignment the court said (115 S.W.2d l.c. 22):
"It is argued that said instruction was prejudicial because it permitted the State to change all the grades, drains, etc., of the old road in connection with the widening project, but limited the jury to a consideration of the new work done on the 10-foot strip and no other. The instruction complained of told the jury that the State was authorized, without any compensation whatever to defendants, to widen the concrete slab and do other necessary road building work within the confines of the State highway right of way owned by the State prior to the institution of this suit; and that, if the jury believed from the evidence that any portion of the work described in the evidence was done on land already belonging to the State and dedicated to highway uses, then, in arriving at the damages to be allowed to defendants, the jury should allow nothing for the work, if any, so done within the confines of the right of way so owned by the State prior to the institution of this suit, even though such work, if any, may have inconvenienced the defendants or injured the market value of said property. We are of the opinion that said instruction was not erroneous" (italics ours).
Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, was to recover damages to land caused by the city's emptying sewage into Wilson creek near the city. Under the facts, the cause was determined under the law of eminent domain, and in the course of the opinion, this language was used (126 S.W.2d l.c. 1149): "It is the general rule that the owner of land subject to a public easement has no right to insist that the public use remain precisely the same, and if the original use is changed to another of the same general character and no new or other burdens are imposed, there is no reversion and the owner is not entitled to additional compensation."
Sauer v. City of New York, 206 U.S. 536, 27 Sup. Ct. 686, 51 L.Ed. 1176, was to enjoin the maintenance of a viaduct, or to recover damages. Relief was denied plaintiff in the State courts, 180 N.Y. 27, 72 N.E. 579, 70 L.R.A. 717, and the cause reached the Supreme Court of the United States, where the judgment of the State court was affirmed. In the opinion the court said (206 U.S. l.c. 544): "The State courts have uniformly held that the erection over a street of an elevated viaduct, intended for general public travel and not devoted to the exclusive use of a private transportation corporation, is a legitimate street improvement equivalent to a change of grade; and that, as in the case of a change of grade, an owner of land abutting on the street is not entitled (absent a statute) to damages for the impairment of access to his land and the lessening of the circulation of light and air over it."
"The opening, construction and maintenance of public highways is purely a governmental function, whether done by the State directly or by one of its municipalities." [13 R.C.L., p. 79, sec. 70.] Under the governmental function rule, not always specifically referred to, and absent an authorizing statute, relief has been denied where damages resulted by falling from an unguarded bridge (Reardon v. St. Louis County, 36 Mo. 555); from filling up a millrace to prevent injury to a public road (Swineford et al. v. Franklin County, 73 Mo. 279); from a defective bridge in a public road (Pundeman v. St. Charles County, 110 Mo. 594, 19 S.W. 733; Clark v. Adair County, 79 Mo. 536); from driving an automobile, in the nighttime, into a creek where a bridge had been removed and the place left unguarded (Moxley v. Pike County, 276 Mo. 449, 208 S.W. 246). Also, and in spite of Sec. 21, Art. 2 of the Constitution, and under the rule of governmental function, relief has been denied, because of the absence of an authorizing statute, where lands, outside of a drainage district, have been damaged from overflow due to the improvements of the district. [Anderson et al. v. Inter-River Drainage Dist., 309 Mo. 189, 274 S.W. 448; Sigler et al. v. Inter-River Drainage Dist., 311 Mo. 175, 279 S.W. 50; Max v. Barnard-Bolckow Drainage Dist., 326 Mo. 723, 32 S.W.2d 583.] See also, Todd v. The Curators of the University of Missouri, 347 Mo. 460, 147 S.W.2d 1063, concurrently handed down, and where it is held that the State University is not liable for failure to exercise ordinary care to furnish a reasonably safe place to work.
In the Zoll case ( 343 Mo. 1031, 124 S.W.2d 1173) we said that "courts in other jurisdictions, with constitutional provisions in effect the same as our Sec. 21, Art. 2, have upheld suit against counties for consequential damages resulting from public improvements. However, in some instances there was an authorizing statute, or a statute construed in connection with the Constitution," citing Board of Commissioners of Logan County v. Adler, 69 Colo. 290, 194 P. 621, 20 A.L.R. 512; County of Chester v. Brower, 117 Pa. 647, 12 A. 577, 2 Am. St. Rep. 713; Elliott v. County of Los Angeles, 183 Cal. 472, 191 P. 899; Smith v. Floyd County, 85 Ga. 420, 11 S.E. 850; Dallas County v. Dillard, 156 Ala. 354, 47 So. 135, 18 L.R.A. (N.S.) 884; County of Douglas v. Taylor, 50 Neb. 535, 70 N.W. 27; Nelson County v. Loving, 126 Va. 283, 101 S.E. 406, but such has not been the rule in this State.
Plaintiff argues that this court has already, in effect, decided that recovery can be had in the present case. This contention is based on the ruling in Hill-Behan Lumber Co. v. Skrainka Construction Co., 341 Mo. 156, 106 S.W.2d 483. That cause was against the contractor and the members of the State Highway Commission to enjoin the building of the viaduct concerned here until plaintiff's damages, if any, were ascertained and paid. It was held that plaintiff was not entitled to injunctive relief because there was adequate remedy at law for any damages that plaintiff "may have sustained." The question of whether plaintiff was entitled to recover damages was not before the court in the injunction suit, and the effect of the opinion in that case is no more than that if plaintiff was entitled to recover damages, it had an adequate remedy at law.
It is our conclusion that plaintiff cannot recover in this cause, and we base that conclusion on the absence of a statute authorizing damages to abutting property owners, if damage results, when the State or its agency changes the grade of a public highway. Such a statute would be an unequivocal consent of the State for the maintenance of such a suit as here. We held in the Zoll case ( 343 Mo. 1031, 124 S.W.2d l.c. 1173) that Sec. 21, Art. 2 of the Constitution "is not in itself consent of the State to maintain" such cause as here. Also, we made an observation, in the Zoll case, that is apropos here, and that observation is this ( 343 Mo. 1031, 124 S.W.2d l.c. 1183): "Section 21, Article 2 of the Constitution, containing the or damaged provision, has been a part of our organic law since 1875, yet no such cause as the present one has been permitted to be maintained against the State or its agencies. It is the prerogative of the State to determine when suit may be maintained against it or its agencies and when not."
If plaintiff has sustained damages by the building of the viaduct, such damages are damnum absque injuria. [1 C.J., p. 964, sec. 57; 1 C.J.S., subdivision (b), p. 1006, sec. 15.] The order and judgment granting the new trial should be affirmed and the cause remanded with directions to the trial court to dismiss plaintiff's petition. It is so ordered. Hyde and Dalton, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.