20 Colo. 13 | Colo. | 1894
delivered the opinion'of the court.
The question presented by this record may be stated as follows: Is a municipal corporation liable in damages for an injury to abutting property occasioned by the building of a viaduct in a public street over railroad tracks? The evidence in this case shows that plaintiff’s property is located on the corner of C and Mechanic streets in the city of Pueblo ; that it was improved and valuable for business purposes prior to the erection of the viaduct; that this viaduct was elevated eight feet above the old sidewalk at one end of plaintiff’s property and twenty-two feet at the other, and that by reason thereof the property was closed to access by teams from either C or Mechanic streets; that by the construction of the viaduct the property was rendered practically inaccessible, except from an alley in the rear.
That the property was damaged by the erection of the viaduct is shown by the uu contradicted evidence introduced at the trial. It is claimed by appellant that the viaduct is a necessary street improvement, and that the injury complained of is not actionable, while the appellee contends that, the injury being conceded or proven, a right of recovery is guaranteed by the following provision of our state constitution: “Private property shall not be taken or damaged,'for public or private use, without just compensation.” Sec. 15, art. 2.
This provision of the fundamental law has received consideration from this court in a number of cases. The result of these cases may be fairly summarized as follows: For injuries resulting from reasonable and ordinary or usual change and improvement of the street by the municipality, the abutting owner cannot recover, provided the change or improvement is made in a careful and skillful manner for the benefit of the public. City of Denver v. Bayer, 7 Colo. 113; City of Denver v. Vernia, 8 Colo. 399; Denver Circle R. Co. v. Nestor, 10 Colo. 403; Denver & S. F. R. Co. v. Domke, 11 Colo. 247; Gilbert v. G. S. L. & P. R. Co., 13 Colo. 501
The insertion of the word “ damaged ” in addition to the woid “ taken,” first appears in the amended constitution of Illinois adopted in 1870. It has since been incorporated into the constitutions of West Virginia, Pennsylvania, Arkansas, Missouri, Alabama, Nebraska, Texas, Georgia, California, Colorado, Kentucky, Montana and the Dakotas. In a majority, if not all of these states, except Colorado, where a construction has been had, the courts have given the provision a literal interpretation, allowing a recovery in all cases where private property has sustained substantial damage by the making of a public improvement. We shall not undertake to cite the cases supporting this conclusion, as the number forbids it. Reference to a majority of such cases may be found in the recent case of Brown v. City of Seattle (Wash.), 31 Pac. Rep. 313. In that case after review of the authorities the conclusion is stated as follows :
“ Every court in which the point has been raised has decided in favor of the private citizen, but, were it now presented to us for the. first time in the history of the phrase, we should not be disposed to view it in any way different from that expressed in the cases we have cited. If private property is damaged for the public benefit, the public should make good the loss to the individual. Such always was the equity of the case and the constitution makes the hitherto disregarded equity now the law of it.”
The City of Denver v. Bayer, supra, is the leading case in this state upon the question. Although the right of recovery was somewhat restricted from the rule announced in Illinois and some other states, it was expressly held that the word damaged was inserted in the constitution for a purpose, which purpose was to add an additional right of action.
“ A distinction was, in my judgment, intended between those uses to which every street is primarily and necessarily dedicated, and those extraordinary uses which are tolerated in but very few, probably not more than one in a hundred, of the many streets required for its convenience by the local public.”
The court as then constituted, while expressly refusing to extend the recovery in accordance with the rule in Illinois and a few other states in which the provision had at that time received judicial consideration, was of opinion that it was a recognition of a new right of action not necessarily known to the common law. And this principle has been recognized since in several of the cases cited.
In the Bayer Case a right of recovery was recognized for any injury or annoyance occasioned by a railroad to an abutting property owner, injuriously affecting his property without injuring that of his neighbor, and it was held that the owner of property abutting on a street had a special property — an easement in the street not common to the general public, that entitled him to free ingress and egress from the street to his property, and that if such easement was taken away or injuriously affected he was entitled to just compensation therefor.
In the case of Jackson v. Kiel, supra, a railroad company was held liable for damages occasioned by blockading the space or intersection with another street, thereby preventing
In Town v. Parker, supra, it was decided that the owner of abutting property had rights in the street not shared by the general public, and that if the highway was obstructed or impaired as a means of ingress and egress to his property, the abutting owner was entitled to recovery for the depreciation of the value of his property occasioned thereby. See also, U. P. R. Co. v. Foley, 19 Colo. 280.
Under these decisions, the plaintiff is entitled to recovery in this class of actions in cases where the damages suffered are different in kind from those suffered by the general public, -while a recovery is denied for those damages common to all. And when damages are occasioned an abutting owner by an improvement in the street in front of his property, whereby ingress and egress to the premises is injuriously affected, this is a kind of injury not common to the general public.
By the fourth defense it is alleged in substance, that the viaduct was a reasonable and proper street improvement, and it is claimed that this constituted a complete defense to plaintiff’s action. This claim is not supported by the decided cases in jurisdictions having a constitutional provision similar to the one under consideration.
In the case of Rigney v. The City of Chicago, 102 Ill. 64, like arguments were advanced to those urged by appellant. The conclusion was that the building of a viaduct in a public street by the city rendered the city liable in damages to the owner of abutting property, where the effect was an impairment of some right which the private owner enjoyed in connection therewith; such, for instance, as the right of ingress to and egress from the same. Although the result was concurred in by only a bare majority of the court it has since been recognized as the settled law in the state of Illinois.
In Chicago v. Taylor, 125 U. S. 161, also a viaduct case, the supreme court of the United States reached a similar conclusion without a dissent. Although this result may have been influenced by the prior decisions of the state court, the
The case of Selden et al. v. City of Jacksonville, 28 Florida, 558, is not necessarily opposed to the foregoing views, the decision in that case being based upon a constitutional guaranty that private property shall not be “ taken ” or “ appropriated” without compensation. It was held that this provision did not embrace mere consequential damages resulting to property abutting on a street, from a change of grade of the street or other improvement thereof made by municipal authorities acting within the scope of their charter powers, but only to a trespass upon or physical invasion of the property.
It is not necessary to question the correctness of the foregoing decision, based as it is upon a dissimilar constitutional provision from that here in force. It is not controlling under the peculiar provisions of our constitution. Moreover, it-narrows the right of recovery within limits not universally recognized, even where constitutional provisions are in force similar to that found in the state of Florida. Spencer v. Metropolitan St. Ry. Co., (Mo.) 23 S. W. Rep. 126.
A strict application of this rule would hold the dedicator as having consented to an use of the street that totally destroys the value of his property, although no human foresight could have anticipated such an unusual use. Under it the results of a life of toil and frugality, if invested in town or city property as a provision for old age or dependent families, might be lost as a result of an improvement erected for the benefit of the general public. The rule is certainly more reasonable and just which requires compensation to be made by the municipality out of the common fund, for an injury occasioned by an improvement for the public convenience, than to require the individual to suffer the entire loss.
Moreover, the constitutional provision in force in this state is remedial in character and for the purpose of giving property holders additional security, and under well settled canons
We think the building of a viaduct in a public street is such an extraordinary use of the street as could not have been reasonably anticipated at the time of the dedication. And under constitutions like ours, both principle and authority unite in support of ■ the rule allowing the owner of abutting property to recover damages when the means of ingress and egress to his property is obstructed or injured thereby.
It follows that the facts alleged as a fourth defense constituted no defense to plaintiff’s action, and the defense was therefore properly stricken out. Nothing remained for the jury to determine but the amount of the damages. It is not claimed that the damages allowed are excessive, and the judgment is accordingly affirmed.
Affirmed.
