138 P. 1177 | Utah | 1914
The plaintiffs, respondents in this court, brought this action against Salt Lake City, the appellant, to recover damages to their residence property, which, it is alleged in the complaint were caused by appellant by raising a street from its natural level as it was in front of the property in question and the adjoining properties. The city, in its answer, justified the making of the fill, and pleaded an estoppel, upon the ground that respondents had offered no objection or protest to the grading of the street, and had paid the special taxes assessed against them for that purpose. The controlling facts, briefily stated, are as follows:
In 1898 Salt Lake City, in a legal and proper manner, established a grade for First West Street, the street in question, and for a large number of other streets in said city. The records and profiles were kept on file in the engineer’s office, and were kept so as to show just what the grade would be when carried into effect in front of any particular prop
She said:
“The filling in the sidewalk in front of our premises has damaged it in the way of inconvenience to ourselves and in the way of getting to the coal and things of that kind. It bars us in a measure in getting at the place as easily as we did before. We have to go down and up steps, four steps from the sidewalk down. It leaves the place in a sort of hollow. Before that it was level with the sidewalk.”
She further testified that when the house was built the front porch floor was about the same height as the present fill in the street; that it required four steps to reach the floor of the porch, and after the street was filled it also required four steps from the lot level to reach the top of the cement sidewalk which had been laid by the city.
On cross-examination she admitted that there never had been a driveway into the lot from the street in front. Upon that point she said:
“There never was any way to get into property with a team only from the back. One could get into the barnyard, but not beyond that. There was no way to drive in from in front.”
From her testimony it is also made to appear that when respondents purchased the property the street along the sidewalk was practically even with the surface of the lot, but that the street proper might have been a little higher, especially so along the easterly margin thereof; that access to
Tbe theory on which tbe district court tried and submitted tbe case to tbe jury is perhaps best reflected from tbe court’s ■charge. Tbe court, among other things, charged as follows:
“(3) You are instructed that it is established by evidence not disputed in tbe case that in tbe year 1893 tbe city council of Salt Lake City fixed a grade for tbe sidewalk in front of plaintiffs’ premises by resolution of tbe city council, and bad tbe same filed in tbe office of tbe city engineer of said city, and that such grade so fixed was more than two feet higher than tbe sidewalk as laid by tbe defendant city in tbe year 1909. You are instructed that such grade fixed by tbe city council, and so filed in tbe city engineer’s office, was a matter of public record, open to tbe inspection of tbe public by any person interested therein. You are further instructed that, if you find from the evidence that prior to the time that plaintiff’s house ivas built the said city, for the purpose of making such street, as distinguished from the sidewalks, to conform to said grade of 1893, filled in the same to substantially the same height as the same was found in the latter part of the year 1909, and has since continued to be, and that an ordinarily prudent person by observing its condition at the time the house was built, and by inquiry at the city engineer s office, and an inspection of the grade fixed by ordinance; would have understood that it was actually the intent of the city to proceed within a reasonable time to raise the sidewalk abutting plaintiffs’ property to conform to the grade fixed in 1893, then tbe court instructs you it was tbe duty
“(4) You are instructed that the burden is upon the defendant city to prove by a preponderance of the evidence that the conditions of the street were such as to convey notice to an ordinarily prudent owner that the city was acting upon the grade theretofore fixed by the city council, and that it intended to make the sidewalk abutting plaintiffs’ property conform to such grade. You are further instructed that, unless you find from the evidence that the city had acted upon grade so fixed by the city council, and had made such street conform thereto to such extent as to carry such notice of its intent to make the sidewalk conform thereto, then the court instructs you that the property owner might act upon the assumption that the city acquiesced in the grade of the street as he found it to actually exist at the time of building his house, and could build his house on the assumption that the street as he found it was the one to be maintained.
“(8) You are instructed that the burden is on the plaintiffs to prove the amount of damages, if any, they have suffered, and you are further instructed that the burden is ón the defendant city to prove the amount that a p'mdent owner could and should have prevented by the exercise of ordinary caution
The parts of the charge italicized' were excepted to by appellant, and paragraph four thereof was by the appellant excepted to in tolo.
“(12) If you find from the evidence that the city, before the purchase of the house in question by the plaintiffs, duly established a street or sidewalk grade on First West street in front of the property of the plaintiffs, which grade called for a fill of several feet on the sidewalk part of said street abutting plaintiffs’ said property, and that the record of said grade was in the office of the city engineer of said city, and open to public inspection, and that the plaintiffs might have ascertained such fact by the use of ordinary prudence, and did not, they are not entitled to recover in this action.”
“(16) If you find from the evidence that before plaintiffs bought the place in question there had been duly established by the city council a grade which called for a fill in the sidewalk in front of plaintiffs’ property, and that said grade was in force at the time plaintiffs bought the property, and that the only damage to plaintiffs’ property was caused in making said sidewalk conform to said grade, the plaintiffs are not entitled to recover in this action.”
The requests were refused, and exceptions were duly noted, and are now assigned as error by appellant.
It is strenuously insisted by appellant’s counsel that the court erred in stating the law in those portions of the charge that were excepted to by them. Counsel for respondents, upon the other hand, contend that the charge conforms to the law as laid down by this court 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. Salt Lake City, 32 Utah, 261, 90 Pac. 397; and in Webber v. Salt Lake City, 40 Utah, 221, 120 Pac. 503, 37 L. R. A. (N. S.) 1115, not yet officially reported. We cannot agree with this contention. In the first two cases the question passed on was whether the city was liable for damages which were caused by changing 'an established grade in the street, where such change injured or damaged abutting property. We there held that for damages caused by changing an established grade the city was
“This case, so far as the question of a change of an established grade is concerned, falls squarely within the decisions of this court in Kimball v. Salt Lake City; . . . Hempstead v. Salt Lake City; . . . and Felt v. Salt Lake City, 32 Utah, 275, 90 Pac. 402. In view of the rule laid down in the cases just referred to, the change of grade in this case was clearly a change of an established grade, and, as the evidence is sufficient to sustain such a finding, no further discussion of that question is necessary.”
In those cases the facts were that the owners of the property there in question had improved the same by erecting buildings thereon in conformity with what we held constituted an established grade established by the city; that, after the buildings had been so erected, and the property had been improved, the city changed the grade of the street and in so doing materially damaged the abutting property. We held that under such circumstances the owner could recover damages under our constitutional provision that “private property shall not be taken or damaged for public use without just' compensation.” We are still satisfied that those decisions are in harmony with the great, if not the overwhelming, weight of authority emanating from the courts of states which have a constitutional or statutory provision like the one we have just quoted. The proposition that we are confronted with now is, however, not the one we passed on in those cases.
Starting out, therefore, with such-authority, the city authorities must be allowed some discretion in making it effective. We also think that every purchaser of city property
The Supreme Court of Louisiana, under a constitutional provision precisely like ours, in Manning v. Shreveport, 119 La. 1044, 44 South. 882, 13 L. R. A. (N. S.) 452, after holding that an abutting owner may recover for damages caused to his property by a change of an established grade, in referring to the proposition that he may not do so where he improves his property after a grade has been properly established, and before it is physically carried into <effeet, the court says:
“But, if the lot be not improved when the grade to be actually established in the future is adopted, no liability for damage to improvements is imposed, and no right of recovery with respect thereto, whether inchoate or otherwise, is created. Under such ■ circumstances, if the then nonexistent improvements are subsequently, and at the option of the owner, placed upon the lot, they ■ come into existence subject to conditions already established, and ■of -which the owner of the lot has notice, and he must govern himself accordingly.”
The Supreme Court of Appeals of West Virginia, which -state has a constitutional provision in terms like ours, after ■approving the rule we have adopted in the Kimball and
“How is it as to buildings erected after the city had 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 he 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 lawmaking power. The city cannot grade all streets to the line at once.”
Tbe court, therefore, arrived at tbe same conclusion tbat is arrived at by tbe Louisiana Court in tbe case quoted from.
In Davis v. M. P. Ry. Co., 119 Mo. 180, 24 S. W. 777, 41 Am. St. Rep. 648, tbe Supreme Court of Missouri, after bolding tbat an abutting owner may recover damages wbicb he sustains to bis property by reason of a change in a street from one established or recognized grade to another, upon the question now before us says:
“Is a property owner entitled to consequential damages to his improvement thereon by reason of the city changing the street to a grade previously established? We think not. When the authorities of a city are of the opinion that the proper improvement of any of its streets may require that they should be graded, though the city may not, at the time, be in a condition to incur the expense, we think it would be entirely proper, in order to protect itself against increased damage and cost, that it should establish a grade to which subsequent improvement of adjacent property could be made to conform. If this is done, and the grade so established is made a matter of record ascertainable by property owners, they should be bound by it.”
It was accordingly held that no recovery could be had for any damage which the abutting owner sustained to his improvements by making the street conform to the established grade, where such improvements were made after the grade was established, but before actually carried into effect. The case is followed by the same court in Clinkenbeard v. City of St. Joseph, 122 Mo. 641, 27 S. W. 521.
“One who buys property on a street after a grade bas been •established should improve with reference to the established grade, and not with reference to the natural grade; and where, in such a ■case, a purchaser improves with reference to the natural grade, and the city afterwards cut down the street three feet to the established grade, it was held that no recovery could he had.”
Without quoting further from the cases, we refer to the •following additional cases, in which it is held that the city has a right to establish grades in advance, and that an abutting owner, after the grade has been established, in making improvements upon his property, must conform to the established grade, and if he fails to do so, and suffers damages by reason thereof, in case the street is made to conform to the grade, he cannot recover: City of Montgomery v. Townsend, 84 Ala. 478, 4 South. 780; In re Opening East 187th Street, 78 App. Div. 355, 19 N. Y. Supp. 1031; In re West Farms Road, 41 Misc. Rep. 216, 95 N. Y. Supp; 894; concurring opinion of Mr. Chief Justice Dickey in Rigney v. Chicago, 102 Ill. 82, 84.
In this connection, however, the further question arises, namely: .
Can a city originally establish any grade it pleases upon any street, and escape liability for injury to property caused by carrying such a grade into effect? Some courts have gone to the extent of holding that the city authorities are vested with the power and discretion to establish any grade, and make the street conform thereto, provided the grade is established before the abutting property is improved. Other courts have taken a different view. The latter courts hold that every purchaser of property abutting upon a street purchases it subject to the right of the city to make certain improvements thereon for the purpose of making the street safer and more convenient for public travel. Those courts, however, also hold that, where a city improves a street for the purpose of affecting outlying property or does so as a matter of beautifying the streets, and in doing these things goes beyond what is necessary to make them safer and more convenient for travel, then the city may be liable to an abutting owner for damages to his real estate (not improvements afterwards made) by reason of making such improvements. The question is discussed to some extent in the cases we have hereinbefore referred to. The rule is stated in the headnote, which reflects the opinion, to the ease of Montgomery v. Townsend, supra, in the following language:
*219 “ . . . The municipality has authority to change the grade- or surface, either hy cutting down or elevating it, from time to* time, as may be deemed necessary or proper to render it useful, convenient, and safe as a public thoroughfare. . . . Under the constitutional provision which requires corporations to make just, compensation for property taken, injured or destroyed, ... a liability is imposed for injuries caused to adjacent property by a change in the grade or surface of a street or sidewalk, when it goes beyond the extent and purpose of the original taking or dedication, that is, when it is made for ornamentation, or to improve the general appearance of the street, or for an increase of convenience beyond the ordinary standard; and this is, in most cases at least, a mixed question of law and fact.”
The same thought is expressed in different language in some of the cases we have cited above. Mr. Dillon, in volume 4 of his excellent work on Municipal Corporations (5th Ed. 1911), in section 1684, discusses the effect of our constitutional provision with respect to the right of establishing a grade in the first instance, and in section 1685 he takes up the legal consequences which follow in case a change is made' by the city in an established grade. The author, in a former edition of his work had taken strong ground in- support of the unqualified right of cities to establish grades, and to-make cuts and fills to any extent, without becoming liable-to the owner of unimproved property; but in his fifth edition we think he has somewhat modified his views in that regard. In section 1684, in speaking of the comparative rights-of the city and the owner, the author says the owner must be-deemed to consent
“that tbe public authorities may determine grades, and possibly that future changes in grades may be necessary or desirable for the-public convenience. He must contemplate that hills within the-limits of the street will be reduced from the natural surface, making a cut; that ravines and low places therein will be filled up to the ordained grade or level, leaviri'g an embankment in front of the abutting property. The right to make such improvement of the street for legitimate street ‘purposes would seem to be embraced in his grant or dedication to the public. ... In view of these considerations, it seems to us clear that, for the original establishment of a grade line and the reduction of the natural surface of the street for street purposes to such line, there is no legal right or even natural equity in the dedicator- or his assignee to compensation.”
“For the reasons above suggested, it seems to us that, on principle, the mere provision of the Constitution imposing a liability for property damaged for public use does not create a liability on the part of the municipality for reducing the natural surface of the street, in the course of its normal and ordinary improvement for street purposes proper, to a grade line for the first time established. If there are cases to the contrary, we doubt whether they are well considered, and think that they are not well decided.”
9 Counsel for the city also insist that the respondents were estopped from maintaining the action because they did not object or protest the special tax levied for the improvement. We held, in Coalter v. Salt Lake City, supra, that in this state there is no Way by which an abutting owner can recover damages to his property which are occasioned by making street improvements except by an independent action in the courts. The city authorities, in levying the special tax for street improvements, are not authorized in that proceeding to pass on or allow damages that may accrue to abutting property by reason of making the improvements. In some states the city authorities are given power or jurisdiction to pass on and allow such damages in the proceeding in which the special tax is levied, and, in ease
While there are other questions argued by appellant’s counsel, yet, in our judgment, all have been sufficiently answered by what has already been said.
The judgment is therefore reversed, and the cause is remanded to the- district court, with directions to grant a new-trial, and to proceed with the case in accordance with the views herein expressed. Appellant to recover costs.