120 P. 851 | Utah | 1912
Respondent recovered judgment against appellant for damages to her residence property, which in her complaint she
The facts which control this decision, in substance, are as follows: In 1902 respondent purchased a certain lot in the northeastern portion of Salt Lake City fronting 57% feet on what is known as Third Avenue, and extending into the block 82% feet. When she purchased said property, an old dwelling house was upon it which was caused to be removed, and in the year 1903 she erected a two-story, ten-room, brick dwelling house, with a cellar upon the lot in question. In excavating for the cellar a considerable amount of surplus earth was obtained, which was spread on the natural surface of the lot by means of which, according to the testimony of respondent’s husband who superintended the making of the improvements of the lot, the natural surface of the lot was raised on the west lot line about two feet and on the east- line about eighteen inches. Mr. Coalter, the witness in question, however, simply approximated to what height the lot was raised, frankly admitting that he was only giving his best judgment in that regard, and that he had never made any actual measurements. According to the testimony of the city engineer, who purported to give the height the original surface of the lot was raised by the earth obtained from the cellar by actual measurements with instruments', the height of the west lot line was given as 3.4 feet and on the east line as 1.6 feet. The difference given by the city engineer between the west and east lot lines seems to be the true difference for the reason that Mr. Coalter himself said that in making the fill he aimed to make the front of the lot level, or nearly so, and the natural incline of the lot from east to west is about the difference stated by the city engineer, as appears from the profiles in evidence. Third Avenue, which runs east and west, has been used as a thoroughfare for a great many years.
Counsel for appellant have assigned a large numjber of errors of which we shall consider only such as in our judgment present some question of law, and which in some way have affected appellant’s legal rights.
Counsel for appellant have argued at great length that respondent is prevented from recovering in this action because she paid the special tax levied against her property covering the cost of constructing the • cement walk in front thereof. While this objection might have much force under the statutes of some jurisdictions,
The most serious question in this case is presented in two ways: (1) By the refusal of the court to direct a verdict in favor of the appellant upon its request after all the evidence was before the court and jury;
“A large part of the earth in the embankment next to the petitioner’s property has since been removed, hut the grade of the street has not been changed. The grade of the street having been established in 1882, it was not altered or changed by the cutting down of the embankment on either side of the street for the purpose of making the whole street conform to the grade thus established.”
In that case the traveled portion of the street had been cut down to the grade established in 1882, and a number of years later that portion of the street where the sidewalk was to be laid was also cut down, and the action, as in the case at bar, was based upon the act of the city in causing the space where the sidewalk was to be laid to be excavated and lowered. The case at bar, however, is much stronger in its facts against the respondent as an abutting owner than was the New York'case just referred to against such an owner. In the case at bar respondent purchased and improved her lot after the street grade had been established and after the major portion thereof had been lowered approximately to the established grade. Permanent street car tracks had been laid and street cars were being operated on the street when appellant purchased her property. The space for the sidewalk was, however, left in practically its natural state, which was considerably higher than that portion of the street which had been brought to grade. It was therefore apparent that whenever a permanent sidewalk would be laid an excavation would have to be made in front of respondent’s lot to bring it down to the level of the
No doubt, if respondent desired to raise her lot, she had a perfect legal right to do so, but in doing so she was also required to pay some heed to the right of appellant to lay down a permanent sidewalk, and in doing that work to make the street conform to the established grade. From all the evidence in this case it is not only palpable, but it is so clearly established, that reasonable minds cannot differ that, if respondent had improved her lot in accordance with the circumstances that surrounded her, she would have suffered no damage whatever. This is easily demonstrated. Can any one seriously contend that a terrace ranging in height from 3.2 feet on the west lot line to 2.5 feet on the east lot line could possibly injure or damage respondent’s property? Tet this is precisely what appellant lowered the sidewalk below the surface of the lot as it was when respondent purchased it. The difference between the foregoing and the height of the terrace after the walk was laid was caused by respondent herself in raising her lot. But, conceding that a terrace of a height of a little over six feet on the west and a little over four feet on the east lot line was necessary, would such a terrace, if properly sloped and a sufficient distance from the sidewalk, be any injury or damage to residence property? Is it not a condition that is so generally prevalent that it is known to all that such a terrace is not only not an injury to residence property, but that in some respects it is desirable, since it elevates the dwelling house above and farther away from the street ? Where property is used for business purposes, no doubt a different rule would apply. But a driveway could still be constructed along the east lot line of respondent’s frontage at a reasonable cost, and, if respondent, had not raised the surface of her lot, the excavation made by appellant would not have materially affected the cost of con
Counsel for respondent, however, contend that under the rule laid down in Kimball v. Salt Lake City, 32 Utah 253, 90 Pac. 395, 10 L. R. A. (N. S.) 483, 125 Am. St. Rep. 859, Hempstead v. Same, 32 Utah, 261, 90 Pac. 397, and Felt v. Same, 32 Utah, 215, 90 Pac. 402, she is entitled to recover for any» change of grade, although it be a change of the natural grade, provided such change in some way and to some extent injures or damages her property. There is absolutely nothing said in those cases from which it could be inferred that an abutting property owner need pay no attention to established grades in improving his property where the street had not been brought to grade for its entire width when the improvements by the abutting property owner are made. What Ave held in those cases, in effect, was that, Avhen a city permits abutting property owners to improve their property in accordance with a street grade Avhich has been recognized by the city as an established grade for a long term of years the city may not depart from such a grade without compensating the abutting property owner for any substantial damages that he may sustain to his property and the improvements thereon by reason of making the change. In the cases referred to, all of the owners had improved their property to conform to a grade as the same had been used and recognized by the city for many years. The city, after the abutting property there in question, and this we held the city could not do so as almost to cut off ingress and egress to and from the property there in question, and this we held the city could not do without paying the damages caused by the change of grade under, our constitutional provisions. But the.very principle upon which the right to recover in those cases is based operates to prevent a recovery in the case at bar. In those cases the principle invoked in favor of the abutting owners was the long acquiescence on the part of the city in an apparently established grade from which the property owner could assume that he was
In view of the foregoing conclusion it becomes unnecessary for us to pass upon appellant’s other numerous assignments.
The judgment is reversed and the cause remanded to the district court, with directions to grant a, new trial, and' to dispose of the case in accordance with the views herein expressed. Appellant to recover costs.