Johnson v. City of Granville

161 N.W. 721 | N.D. | 1917

Bruce, Oh. J.

This is an appeal from an order sustaining a demurrer to the complaint and from the judgment entered thereon. The complaint alleges that the defendant ordered the construction of a sidewalk in front of the lot and building of the plaintiff, and “that by reason of the constructing of said sidewalk at a level above the grade of the front of the building above described and mentioned this plaintiff has been compelled to raise said building a height of approximately 15 or 18 inches, greatly injuring and damaging said building by wrenching apart the joints, partitions, and joists of said building, cracking and destroying the plaster in said building, and generally greatly weakening and damaging and injuring lire whole of said building without tbe fault of this plaintiff, damaging and injuring tbis plaintiff intbe sum of five hundred and no-100 ($500) dollars; that tbis plaintiff, in order to so raise said building, was compelled to, and did, employ workmen for that purpose, and expended money for labor in effecting tbe raising of said building in tbe sum of three hundred and no-100 ($300) dollars, and that tbis plaintiff expended for material and lumber for tbe effecting of tbe raising of said building and the repair of said building tbe sum of two hundred and no-100 ($200) dollars.

“That by reason of. tbe damage to this plaintiff’s building and the-expenditure of money for labor and material in raising said building and repairing tbe same tbis plaintiff has been damaged in tbe sum of one thousand and no-100 ($1,000) dollars.”

Tbe demurrer alleges that tbe complaint fails to state a cause of' action; that the plaintiff has failed to allege that tbe defendant ever bad or established any grade; that plaintiff fails to allege that defendant exercised any control over tbe way and manner of repairing said building; that plaintiff fails to allege that tbe defendant enacted an ordinance changing tbe grade of said street so as to damage said property in any manner.

Defendant, in short, alleges that if tbe order of tbe public officials, changed any established grade, it was an ultra vires order, and that when tbe plaintiff and appellant obeyed it, she did so unnecessarily.

It alleges that nowhere in tbe complaint is there any charge that the city moved any dirt or did any work or in any way obstructed tbe access to tbe lots in question or raised tbe streets in front of them.

Tbe question then to be determined is whether a person is entitled to recover against a city tbe cost of raising a building to tbe level of a sidewalk which is ordered by tbe officers of the city to be constructed, and which he constructs in pursuance of such order, 18 inches above tbe former level of tbe street, there being no allegation in tbe complaint that a grade was ever established by the city or that the city itself, except in tbe issuing of the order mentioned by officials, ever, at any time, encroached upon tbe premises of tbe plaintiff or did any physical act which interfered with bis property rights.

We are satisfied that be cannot, and that tbe demurrer was properly sustained. Even if, for tbe sake of argument, we take tbe position, and we express no opinion upon tbis question, that a natural surface becomes tbe established grade by usage, and that such usage is alleged in tbe case at bar (see Blair v. Charleston, 43 W. Va. 62, 35 L.R.A. 852, 64 Am. St. Rep. 837, 26 S. E. 341; Harman v. Bluefield, 70 W. Va. 129, 73 S. E. 296; note in 36 L.R.A.(N.S.) 1196), it is nevertheless clear that the city had no authority to change that grade, except by ordinance. See Comp. Laws 1913, § 3687. It is admitted in the complaint that no such ordinance was ever adopted. If, therefore, the officers of defendant ordered the plaintiff to construct a sidewalk which was 18 inches above the old established grade and above the level of' the building of the plaintiff, and such order amounted to a change in the grade of the street, it was ultra vires and absolutely void, and it is the established law that a city or village is not liable for damages caused by its officers while acting without authority. 37 Cyc. 241; Pinkerton v. Randolph, 200 Mass. 24, 85 N. E. 892. Much less is it' liable for the consequential damages occasioned to a person by .obedience-to an invalid order made by such persons.

The judgment of the District Court is affirmed.