43 W. Va. 62 | W. Va. | 1896
Lead Opinion
America C. Blair brought an action in the Circuit Court of Kanawha county against the city of Charleston to recover damages for injury to her lot consequent upon grading Morris street, the work placing an embankment of six feet height, above the natural surface of her lot, leaving it and her house that much lower than the street, rendering it difficult of access, causing the lot to be wet, and the cellar to have water in it. ' Verdict and judgment for city.
The law books tell us that, for grading streets, or changing grade, or other lawful works done by a city or town, no action lies for consequential injuries to adjoining property if the work he done skillfully and not negligently; but we must not be misled by the text of the older books
This question has been ui) in states having similar provision in their constitution or laws to ours. In City of Bloomington v. Pollock, 141 Ill. 351 (31 N. E. 146), the court said that it was immaterial whether such grading was done under an ordinance establishing a grade in the first instance, or under an ordinance abandoning the grade, and the fact that the grade was fixed before the plaintiff’s jmrehase was no defense to an action for damages. In Davis v. Railroad Co., 119 Mo. 180 (24 S. W. 777), it- is said by the court that the dedicator should only be held to give implied consent to improvements such as would put the street in a condition safe for use on the natural surface, and the syllabus and opinion hold that an owner of a lot is entitled to consequential damages from the change of the natural surface to a legally established grade. Approved in Hickman v. City of Kansas, 120 Mo. 110 (25 S. W. 225). In Borough of New Brighton v. United Presbyterian Church, 96 Pa. St. 331, it was contended that as the owner of ground had laid it out in lots, and the town had never fixed grades, it was not liable for grading the first time, but it was held that a change from the natural grade was such a change as called for damages. The court said: “A change from the natural grade is a
But counsel say that the Pennsylvania constitution is that compensation is to be given for damages by construction and enlargement of works, highways, etc.; covering, thus, the original construction. But I answer that our Constitution is intended to cover the whole scope of injury, and include any act Avorking the injury, and that it is not limited to enlargement or alteration. In Missouri, the clause is t.Avice held to give the .right to damages Avhen the property is injured “by establishing the grade of a street, or by raising or lowering the grade as previously established.” Hickman v. City of Kansas, 120 Mo. 110 (25 S. W. 225.) The Massachusetts statute gives pay for damages “by reason of any raising or lowering, or other act done in repairing.” Pub. St. Mass. c. 52. § 35. It was held, in Snow v. Inhabitants of Provincetown, 109 Mass. 123, that where no grade is established, the establishment of one afterwards is a change Avithin the statute. (Such was the case here.) And where a street Avas laid out in 1861, and a grade was established, but the street was not built at such grade, and the city, by repairs and otherwise, recognized the existing grade, and in 3877 the street was brought to the grade originally established, it was held actionable, because this change Avas not a part of the original construction of the street. City of Cambridge v. County Com'rs of Middlesex, 325 Mass. 529. In Aldrich v. Board, etc., 12 R. I. 241, the owner Avas given damage
Morris street has been a street, I gather from the ordinance recognizing it in 1872, before that date, and presumably treated by the city as such, and used by the public by a grade of the natural surface or an artificial one. In 1872 a grade line is fixed for it on paper, and commencing work in 1891 or 1892 the street is by physical grading made to conform to it. If improvements were made on lots before the paper grade line of 1872, while .the street, was used and recognized by the city on the natural grade prior to 1892, while the city invited improvements upon it •by adopting it, and then change grade physically, where is there reason for excluding lot owners from compensation for damages consequent upon the change of grade. It would be a case falling under the two Massachusetts cases first cited, and under the Illinois, Missouri and Rhode Island cases.
There is a case in Kansas contra. loiter state R. R. Co. v. Easley, 46 Kan. 197. tío Sargent v. Tacoma, 12 Wash. 212. The case of Folmsbee v. Amsterdam, 142 N. Y. 118, is referred to by the city’s council as holding that there is no inhibition on grading a street until the grade has been established and graded. There a statute charter made a city liable for change of grade “when the grade of a street has been established and the street graded accordingly.” There the very letter required the ..street to have been established and graded;- and, moreover, the (tase strongly sustains the position I take, as it holds that “to establish the grade of a street, within the meaning of said charter, it is not essential there should be a formal ordinance. It may be established by long use and the acquiescence and recognition of the municipality.” In Dalzell v. City of Davenport, 12 Iowa 437, the letter of the act giving-damages limited the recovery to a change from “a grade established by the city engineer,” and therefore has no force here. The case of Henderson v. City of Minneapolis, 32 Minn. 319 (20 N. W. 322), was based on the law, without regard to the change in the constitution, as the opinion shows, tío with Selden v. City of Jacksonville, 28 Fla. 558 (10 South. 457). It related to a constitution de-
But suppose, as in this case, that a- grade line be established, and then, before the street is graded to conform to that line, one purchases a lot on it; is he barred from damage for injury to his lot from the change of grade? His grantor, owning before the paper grade, would not be: Shall he be, simply because he purchased? If so, the one is prevented from selling; the other, from buying. The actual change, may never be made. The ciase of City of Denver v. Vernia, 8 Colo. 399, (8 Pac. 656) so holds. But I do not think this can be shown by other cases. It is not the making of the paper grade that inflicts the injury, but its application to the ground. It is the direct physical disturbance of a right which the owner had "enjoyed in connection with his property that gives action. Rigney v. City of Chicago, 102 Ill. 64 (point 6), approved by Justice Harlam in City of Chicago v. Taylor, 125 U. S. 160 (8 Sup. Ct. 820.) Bee Eachus v. Railway Co., 103 Cal. 614 (37 Pac. 750); Ogden v. Philadelphia, 148 Pa. St. 430, (22 Atl. 694); Brown v. City of Lovell, 8 Metc. (Mass.) 172; Dill. Mun. Corp. 1225, note. In Jones v. Borough of Bangor, 144 Pa. Ct. 638 (23 Atl. 252,) it was held that it is the physical, not the paper, change which confers the right to damages, and that the damages belong to him who is owner at the time of actual grading; audit is further held, when one becomes owner after the municipality has ordained a change in the grade, the fact that his purchase
How 'is it as to buildings erected after the city has adopted grade lines? The owner erects them with his eyes open to them. The city has the undisputed right to adopt them. If it could not, it would not be able, under such a constitutional provision, to protect itself against immense damages. It may adopt them, and every one must conform to them, however inconvenient. It is a law-making power. The city cannnot grade all streets to the line at once. In Groff v. Philadelphia, 150 Pa. St. 594, (24 Atl. 1048,) it was held that, where an owner erected a house on his lot after continuation of a plan fixing the grade of a street, he was entitled to recover for injury to the lot, but not to the house, tio in Davis v. Railroad Co., 119 Mo. 180 (24 S. W. 777.) An ordinance of Charleston required any one about to build to get the grade from the city engineer. This is public law of the city, which every one is bound to know, tio it was in Denver; and in City of Denver v. Vernia, 8 Colo. 399, (8. Pac. 656,), it was held that any one building must conform to the grade line, or, failing, could not recover. I remark that the city law applies to building, prohibiting the act of building without conforming to the grade line. Not so, however, as to buying lots. No prohibition or condition as to that. This is another reason for allowing recovery in one case, not in the other. Therefore, no damage could be allowed Mrs. Blair for injury to buildings. But if, in fact, the plaintiff or her husband made application to the engineer for grade, and he gave the wrong one, any damage as to her improvements, traceable and attributable to the error, would be recoverable.
What is the measure of damages in such cases? ¡Shall there be. set off- against the damage benefits from the change of grade? What benefits? Benefits peculiar to
But, while damages are to be given the owner, his benefits are not to be forgotten ; for we must set off benefits against damages. What benefits? Peculiar, not general, benefits; that is, not benefits which the owner derives from the improvement in common with the public at large, but only such benefits in respect to his property as the law calls “peculiar benefits,” since for the general benefits the owner pays taxes along with others. Kanawha Co. v. Turner, 9 Leigh, 318; Railroad Co. v. Foreman, 24 W. Va. 662. But the question of what are peculiar benefits is one of difficulty. They are said to be those that particularly and exclusively affect the particular property. This is as near a definition as we can give, but does not. solve the exact question in this case. The authorities conflict, or are indefinite. Now, we can clearly say that, if the market value of the property is as much after the improvement as before, no damages can be recovered. But if we apply this rule, wo inevitably charge benefits that are given the property by the improvements which are not confined peculiarly to it alone, but benefits which all the property along the line of improvement derives; for, in
What is said above touching the principles of the. case renders unnecessary detailed discussion of instructions. Plaintiff’s No. 1 was covered by Nos. 3 and 9 given. I think Nos. 1 and 6 are good. They mention no benefits, it is true, but correctly announce the general proposition that plaintiff, if in fact damaged, is to be made whole. Their ignoring benefits was cured by instructions • given for defendant. Plaintiff’s Nos. 4, 5 and 7 are bad, under principles stated above, as they ignore benefits to the property from the improvement, simply because like, benefits accrue to other property along the street. No. 8 is bad, because it ignores the effect of the establishment of the grade line of 1872. All are bad, because they include lot and buildings, when buildings should be excluded, if built after the establishment of grade line. Defendant’s instructions Nos. 1 and 2 are bad ; the others, good. 'Instructions Nos. 1 and 4 of defendant erroneously tell the jury that the grade line would debar recovery, both for lot and improvements. Plaintiff’s exception to the rejection of evidence of the cost of foundation of storehouse, erected, not only after the city adopted the system of grade lines, but after work had been begun to conform Morris street to its grade, is not tenable.
There is no error in allowing the question, “Tell the jury what effect, if any, the improvement of Morris street in front of this property of Mrs. Blair’s had upon
Because of the vice in defendant’s instructions 1 and 4, making’ the 1872 grade line deny all claim for damage to the. lot, the judgment is reversed, and a new trial awarded.
Concurrence Opinion
(concurring).
My worthy associate has made use of the following language in his opinion, which seems to me tends to confusion, to-wit: “The question is the value of the property less special benefits to the property, but not less general benefits shared in common with other property in the neighborhood. * * * It is not right to charge general benefits, and thus make one man pay for what the whole community enjoys.” This is the rule that applies to the ascertainment of the damages in condemnation proceedings to the residue of the property not taken, and contravenes the rule in Stewart v. Railroad Co., 38 W. Va. 438 (18 S. E. 604), applicable to the ascertainment of damages where no part of the property is taken. In condemnation proceedings, the enhanced and prospective value of the property is excluded by the provisions of the statute, from the estimate, for the reason that it is a mere matter of conjecture, and is enjoyed by all property owners, generally, along the line of the road, and in the neighborhood alike. It cannot be considered, though the property may be valuable timber, mineral and coal lands, worth a few cents per acre before the taking and one thousand dollars per acre after the taking. Railroad Co. v. Foreman, 24 W. Va. 662; 2 Dill. Mun. Corp. p. 735, § 625, note 1. Such rule does not apply to cases where no part of the property is taken. The damages are not assessed until the improvement is completed. Then the enhanced value by reason thereof is not a matter of uncertainty, but. fixed and determined, and it is nothing more than right and in perfect accord with natural justice that he wlio asks pay for damages suffered should be willing to give credit for benej
Reversed.
