28 Mont. 27 | Mont. | 1903
prepared the opinion for the court.
By the common law municipal corporations were not held liable for consequential damages resulting to property owners by reason of changes in street grades; The municipal authorities might change or alter the grades of public thoroughfares at will, and the adjoining owners had no redress. It was considered that, public improvements being for the good of the body politic, and always being in contemplation, the individual purchased his city, or town property charged with knowledge that changes might be made as required by public necessity and convenience. So, too, when one platted a townsite, and dedicated certain portions thereof to the public for streets, he and his grantees were presumed to contemplate the changes which would necessarily result from public improvements. The rule damnum absque injuria was held to apply to all such cases, unless the injuiy could be shown to have resulted from the negligent or improper manner in which the work was done. Such is the doctrine asserted in Callender v. Marsh, 1 Pick. 418, and other cases cited by appellant.
The framers of our Constitution abrogated this harsh rule by Section 14, Article III, which reads as follows: “Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for the owner.” It seems very clear to us that this section was
But the appellant insists that it should not be held liable in this action for the reasons stated in its motion for a nonsuit.
As to whether the appellant isi liable “under1 the laws (statutes) of Montana in force at the time” is wholly immaterial. Section 14, Article III, of the Constitution, is both mandatory and prohibitory. It is self-executing, and requires no legislation to rouse it from dormancy. (Searle v. City of Lead, 10 South Dakota, 312, 73 N. W. 101, 39 L. R. A. 345; Hickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, 41 Am. St. Rep. 684; Harmon v. City of Omaha, 11 Neb. 548, 23 N. W. 503, 52 Am. Rep. 420.)
While it is doubtless true that the constitution does not authorize a remedy for every diminution in the value of property which is caused by publici improvement, the damages for which compensation is to be made being a damage to the property itself, and not including mere infringement of the owner’s personal pleasure or enjoyment (Eachus v. Los Angeles Consol.
We think the operation of this section of the constitution ought not to be restricted. The declarations of constitutions are placed therein to be obeyed, and are not to be “frittered away by construction.” In McElroy v. Kansas City (C. C.), 21 Fed. 257, Mr. Justice Brewer, in passing upon a similar constitutional provision, said: “I think, too1, in thet.e days of enormous property aggregation, where the power of eminent domain is pressed to such an extent, and when the urgency of so-called public improvements rests as a constant menace upon the sacredness of private property, no duty is more imperative than that of the strict enforcement of these constitutional provisions intended to protect every man in the possession of his own. * * * Such constitutional guaranty needs no legislative support, and is beyond legislative destruction.”
We are of the opinion that the judgment ought to be affirmed.
Pee Cueiam. — For the reasons stated in the foregoing opinion, the judgment is affirmed.