232 P. 578 | Idaho | 1925
This action was brought by appellant, the owner of property abutting upon a public street, to recover damages alleged to have been caused by the regrading of such street by respondent. The complaint in substance alleges the ownership of the property; that respondent is a municipal corporation; that the public street abutting on appellant's property was dedicated to respondent and has been used as such for over thirty years; that the city regraded and improved this particular street in 1910 and 1911; that the residence upon appellant's property abutting on said street and the improvements thereon were constructed and made to correspond with the established grade of 1910 and 1911; that in 1919 the city regraded said street and destroyed water and sewer pipes and lowered the level of the street approximately five to six feet in front of the property, thereby depriving the property of necessary lateral support and causing it to be deteriorated and otherwise injured to the extent of $2,500; and that just compensation has not been paid for such injuries, although claim therefor was filed, nor has respondent acquired the right from appellant to so injure his property.
To the complaint a general and special demurrer was filed and sustained. Appellant declined to amend and thereafter judgment was entered dismissing the action. This appeal is taken from the order sustaining the demurrer and the judgment dismissing the action.
An order overruling or sustaining a demurrer is not an appealable order within the meaning of C. S., sec. 7152. *233
(Jones v. Quayle,
Appellant predicates error upon the action of the court in sustaining the demurrer and dismissing the action. The demurrer involves the question as to whether a municipality is liable in damages to the owner of property abutting upon a public street for injuries resulting to such property caused by the regrading of such street for the use of the public. It is the contention of appellant that under the constitution and laws of this state just compensation is required to be paid for the taking, damaging or injuring of private property for public use and that the municipality is liable for damages so sustained. It is respondent's contention that such injuries or damages as alleged in the complaint are consequential damages ordamnum absque injuiia, for which no recovery can be had. Art. 1, sec. 14 of the constitution provides that: "Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor." This provision of the constitution is unlike constitutional provisions on the same subject in some other states, in this, that the words "or damaged" are inserted after the word "taken," and under such a provision damages caused by regrading of public streets may be recovered by the abutting land owners. (1 Lewis on Eminent Domain, 3d ed., sec. 348, p. 629.) Under the provisions of art. 1, sec. 14, supra, municipal corporations, in order to acquire a right to establish a public highway, where the same has not been dedicated to public use, must first pay a just compensation for the land so taken. When so taken the municipality is authorized, under the provisions of C. S., sec. 3942, among other things, to grade or establish grades of streets and repair and maintain the same. (Macy v.City of Indianapolis,
There is a well-marked distinction which fixes the liability of a municipality when acting in a governmental or a proprietary capacity, which is pointed out in the case ofBoise Development Co., Ltd., v. Boise City,
It follows that the court properly sustained the demurrer to the complaint and dismissed the action. The judgment of the lower court must be affirmed, and it is so ordered. Costs are awarded to respondent.
McCarthy, C.J., William A. Lee, and Wm. E. Lee, JJ., concur. *236