#### MIRANDA J. QUINN et al., Appellants, v. CITY OF COLUMBIA, Respondent.

Kansas City Court of Appeals,

January 16, 1911.

1. PLEADING: Motion to Strike Out: Inconsistent Positions. ' If the plaintiff asks and obtains an order of court striking out a special defense, set up in addition to a general denial, on the ground that such matter, if a defense at all, was admissible under the general denial, he cannot afterwards complain of the admission of evidence of such matters on the ground that it was not specially pleaded.

2. CHANGE OF GRADE: Higher and- Lower Level. If the natural surface of a street is lower on one side than the other, the fact that a sidewalk has been built on the grade of the upper *512side does not prevent legal damages to the property on the lower side caused by raising the grade to a level of the other side by filling in and thereby leaving such property below the street as thus graded.

Appeal from Boone Circuit *Court.'*— Eon. *E. D. Thurmond,*Judge.

Reversed and remanded.

*N. T. Gentry*for appellants.

(1) Error was committed by the trial court in giving defendant’s instruction No. 1. The answer, which was read to the jury, and upon which the cause was tried, was simply a general denial; accordingly such an instruction was erroneous. In other words, even though there may be evidence to justify the giving of an instruction, yet' the defendant ‘is not entitled to such an instruction, unless his answer tenders such an issue. The instruction referred to was to the effect that the plaintiff could not recover, if the sidewalk on the east side of the street in front of plaintiff's’ property had been previously constructed on the same grade with the sidewalk on the west. Kirby v. R. R., 85 Mo. App. 349; Thompson v. Buckholz, 107 Mo. App. 125; Bliss on Code Plead., secs. 339-340. Besides, this instruction in inconsistent with, and contradictory to plaintiffs’ instructions; and it has always been held error to give inconsistent instructions. Wallack v. Transit Co., 123 Mo. App. 167; Porter v. R. R., 199 Mo. 82; Vanslyck v. Mills, 34 Iowa 375; Blachfield on Instructions, sec. 73; Sackett on Instructions, p. 25. (2) For a long time past, it has been held that a municipal corporation is liable for damages to adjacent property, caused by making a fill in the street abutting on said property; and plaintiffs’ instructions properly declared5 the law on that subject to the jury. Schrodt v. St. Joseph, 106 Mo. App. 627; Reed v. Peck, 163 Mo. 333; *513Walker v. Sedalia, 74 Mo. A.pp. 70; Smith v. Kansas City, 128 Mo. 23; Hannon v. Omaha, 17 Neb. 548; s. c., 23 N. W. Rep. 503; Shaxvnetown v. Mason, 82 111. 337; Werth v. Springfield, 78 Mo. 107; Hutchinson y. Parkersburg, 25 W. Va. 226; City Council v. Townsend, 80' Ala. 491; Reardon v. San Francisco, 66 Cal. 492; Dillon on Mun. Corp. sec. 995; Elliott on Roads and Streets (2 Ed.), secs. 465, 487 and 498; 2 Abbott on Mun. Corp.,' sec. 813; Tiedeman on Mun. Corp., sec. 329.' (3) And our courts hold that the defendant city is liable for damages to adjacent property, even though the fill does not extend the entire width of the street; any change which which injures adjoining property is sufficient to create a liability on the part of the municipality. Schixrmacher v. St. Louis, 3 Mo. App. 297; Stickford v. St. Louis, 7 Mo. App.'217; s. c., 75 Mo. 309.

H. *A. Collier*aixd *E. W. Hinton*for respoxxdent.

(1) The appellant is in no position to coxnplain that the defendaxxt’s first instruction submitted an issue not raised by the pleadings, iix telling the jury that the building of the sidewalk did not axnount to a chaxige of grade, if laid to conform to the xxatural surface oxx the opposite side, becaxxse a special plea alleging this very matter was stricken out on the plaintiff’s own íxxotion. Steele v. Dormer, 124 Mo. App. 338; Mills v. Taylor, 85 Mo. App. Ill; Johnson v. Simmoxxds, 61 Mo. App. 395. It is hardly consistent to urge in this court that á special plea was necessary, after persuadixxg the trial court to strike it out. In short appellant is in the attitude of urging that the case be reversed in order that a plea, stricken out on his owxi xnotion, may be repleaded. (2) There was xxo occasion to plead specially ixx this case because the xnatter was strictly negative aixd weixt directly to disprove the truth of the charge that the grade had been raised. Akers v. Kalkmeyer, 97 Mo. *514App. 520; Kaminski v. Iron Works, 167 Mo. 462; Spar-ling v. Conway, 75 Mo. 510. (3) It is fundamental that a general denial puts in issue the truth of every traversable fact alleged in the complaint, and that under such a plea the defendant may controvert the truth of every matter in issue by any sort of competent evidence whether negative or positive. The defendant’s third instruction was correct as a matter of substantive law in telling the jury that if the sidewalk protected the property from surface water and thereby rendered it more desirable, that amount to a special benefit which the jury should take into consideration in estimating the damages. Rives v. Columbia, 80 Mo. App. 178. The instruction is not open to the criticism that is singled out and gave undue prominence to particular facts, because it simply amounted to a concrete definition' of special benefits as applied to this case. Fleisch v. Ins. Co., 58 Mo. App. 606; Stewart v. Sparkman, 75 Mo. App. 106.; Fleming v. Ry., 89 Mo. App. 129. The rule invoked by appellant applies to instructions dealing with mere evidential facts, and which invade the province of the jury by selecting portions of the evidence and give it undue prominence in relation to the issue, instead of leaving the jury free to consider all of the evidence. (3) There was no error on the part of the trial court in refusing to permit plaintiff’s counsel to tell the jury in his argument that the plaintiff would, have to pay for the sidewalk in controversy, and would have to pay for grading the street when that should be done, because the liability of the plaintiff to pay for improvements was a matter of law which must be put to the jury by means of written instructions, if at all. Dean v. Chandler. 44 Mo. App. 243; State v. Jones, 153 Mo. 462; Heller v. Pub. Co., 153 Mo. 215.

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 *515by 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 *516sides 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.