80 S.E. 254 | N.C. | 1913
HOKE, J., did not sit. ALLEN, J., dissents. The defendant in grading Ninth Avenue in that city found it necessary to place a fill between 5 and 6 feet high in front of a house, belonging to the plaintiffs, which was located in a depression. There was no condemnation proceedings, as the city did not take any portion of the property belonging to the plaintiffs. This action was brought, alleging that the fill was negligently constructed. The evidence is that the work was executed for the city in accordance with the plans, specifications, and directions of the city engineer. It was not denied that the city acted in good faith in grading the street.
In Tate v. Greensboro,
"Authority to establish grades for streets, and to grade them, involves the right to make changes in the surface of the ground which may injuriously affect the adjacent property owners. But where the power is not exceeded there is no liability, unless created by special constitutional provision or by statute (and then only in the mode and to the extent provided) for the consequence resulting from the powers being exercised and properly carried into execution." 2 Dillon Mun. Corp., sec. 1040, cited and approved in Dorsey v. Henderson,
Dorsey v. Henderson also cites with approval from 10 A. E. (2 Ed.), 1224ff, as follows: "A change of grade in streets made by a municipality, if made in accordance with the statute, is not such an injury to adjoining property as to require compensation to be made to owners, unless there is a statute rendering the municipality liable therefor." It is further said therein that this citation is based upon cases cited from England, the United States Supreme Court, and twenty-five States, and is recognized especially in Transportation Co. v. Chicago,
Indeed, the whole subject is so fully discussed by Mr. Justice Brown
in Dorsey v. Henderson,
In Cooley Const. Lim., 542, it is said that this doctrine is almost universally accepted by the State courts of this country. In TransportationCo. v. Chicago,
There is no constitutional provision or statute which limits the right in this State, and, on the contrary, the defendant has full authority for its action under the provisions of its charter, chapter 242, Pr. Laws 1907.Dorsey v. Henderson, supra, was a carefully considered case, and has been cited and approved since. Crowell v. Monroe,
The plaintiffs were permitted to introduce evidence tending to show that the grade at another place on said Ninth Avenue was different from that opposite their property. The evidence of the three civil engineers, one of them subpoenaed by plaintiffs, was that the grade opposite plaintiff's property was necessary and proper. The evidence that the grade at another point was different was incompetent. It tended merely to raise another issue, not pertinent to this controversy. The city had the right to grade the street in accordance with the judgment of the civil engineers, subject to the approval of its board of commissioners, in the absence of oppression, misconduct, or bad faith, of which there was no evidence.
(83) The court also erred in instructing the jury that it was for them to say from the evidence whether or not the construction of the embankment at this point was negligent because of an unnecessary height, because there was no evidence to support this view. If there had been, it should have been submitted to the jury. Harper v. Lenoir,
The plaintiffs also contended that the work was negligently done because the dirt was permitted to roll down from the embankment upon their lot, covering up part of it and some of it rolling upon their porch. Whether it was negligence not to put in a retaining wall to prevent this might well be submitted to the jury unless the plaintiffs consented to the work being done without this. There was evidence that they objected to a retaining wall being put in, and also that they gave permission that the work should be done without such wall. If so, they cannot complain of the consequences. The court erred in refusing to admit evidence in corroboration of the alleged agreement on the part of the plaintiffs to this effect and the ratification of such agreement by the town authorities.
It was alleged in the complaint that the city cut down an oak tree on the plaintiffs' lot worth $25. This was denied in the answer, and the preponderance of the evidence seems to be that the tree was not cut down by the city, or by its authority, but by a negro with the permission of the plaintiffs. This controversy can scarcely be said to come within the terms of the issues submitted, for it was no part of the grading of the street. But as the case goes back for new trial, a separate issue as to this point can be submitted, if desired.
Our conclusion is that for any inconvenience or damage sustained by the plaintiffs' lot from placing the fill in the street opposite thereto under the advice and supervision of the civil engineer, whose (84) plans were approved by the city authorities acting in good faith, the plaintiffs cannot recover unless the work was done negligently. It is damnum absque injuria. The court erred in submitting to the jury the question whether the embankment was not negligently constructed, because unnecessarily high, without evidence to support it; in allowing the jury to consider evidence as to the nature of the grading on another block on said street and in not submitting to the jury for their consideration the evidence of the agreement of the plaintiffs to dispense with the erection of a retaining wall. If there was no such agreement, the plaintiffs were entitled to have the jury consider the damage, if any, caused by defendant's negligence in not erecting a retaining wall to prevent the dirt from rolling down upon the lot of the plaintiffs.
For the reasons above given, there must be a
New trial.
ALLEN, J., dissents. HOKE, J., did not sit.
Cited: S. c.,