Less v. City of Butte
72 P. 140
Mont.
1903
Check Treatment
MB. COMMISSIONER CALLAWAY

By the common law municipal corporations were not held liable for consequential damagеs 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 cоnsidered that, public improvements being for the good of the body politic, and always being in contemрlation, 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, аnd dedicated certain portions thereof to the public for streets, he and his grantees were рresumed to contemplate the changes which would necessarily result from public improvements. Thе rule damnum absque injuria was held to apply to all such cases, unless the injuiy could be shown to have resulted from the negligеnt 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 fоr the owner.” It seems very clear to us that this section was *32drafted in tbe broad language stated for the express purpose of preventing an unjust or arbitrary exercise of tbe power of eminent domain. It overturns tbe doctrine that one owning city or town property must continually live in dread of tbe changing whims оf successive boards of aldermen. Constitutions which provide that “private property shall not be taken for public use without just compensation” are but declaratory of the common law., and contemplate the physical taking of property only. Under constitutions which provide that property shall not be "''taken or damaged” it is, universally held that “it is not necessary that there be any physical invasion of thе individual’s, property for public use to entitle him to compensation.” (Root v. Butte, Anaconda & Pacific Ry. Co., 20 Mont. 354, 51 Pac. 155, and cases cited.) The ownеr of a city lot has “a kind of property in the public street for the ‍​‌​‌‌​‌‌‌‌​​‌​​‌​​​‌‌​​‌‌​​​‌​‌​‌​‌‌​​​‌‌​‌‌‌​​‌‍purpose of giving to such land facilities of light, of air, and of access from such street.” (Bohm v. Metropolitan El. Ry. Co., 129 N. Y. 576, 29 N. E. 802, 14 L. R. A. 344.) “These easements are property, protected by the constitution from being taken or damaged without just compensation.” (Root v. Butte, Anaconda & Pacific Ry. Co., supra; Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638; Eachus v. Los Angeles Consol. El. Ry. Co., 103 Cal. 614, 31 Pac. 750, 42 Am. St. Rep. 149; Rigney v. City of Chicago, 102 Ill. 64; Brown v. City of Seattle, 5 Wash. 35, 31 Pac. 313; Lewis v. City of Seattle, 5 Wash. 741, 32 Pac. 794; Hickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, 41 Am. St. Rep. 684; City of Fort Worth v. Howard, 3 Tex. Civ. App. 537, 22 S. W. 1059; Harmon v. City of Omaha, 17 Neb. 548, 23 N. W. 503, 52 Am. Rep. 420; Schaller v. City of Omaha, 23 Neb. 325, 36 N. W. 533.) Moreover, it may frеquently occur that “the consequential damage may impose a more serious loss upon the оwner than a temporary spoliation or invasion of the property.” (City of Atlanta v. Green, 67 Ga. 386.)

But the appellant insists that it should not be held liable in this ‍​‌​‌‌​‌‌‌‌​​‌​​‌​​​‌‌​​‌‌​​​‌​‌​‌​‌‌​​​‌‌​‌‌‌​​‌‍action for the reasons stated in its motion for a nonsuit.

*33The first point is that the appellant cannot be held liable because the grade complained,of is “the first and only grade ever established on Broadway street.” The constitution does not distinguish between the first grade and subsequent onеs. It provides against the damage occasioned in either case. (Searle v. City of Lead, 10 South Dakota, 312, 73 N. W. 101, 39 L. R. A. 345; City of Bloomington v. Pollock, 141 Ill. 346, 31 N. E. 146; Eachus v. Los Angeles Consol. El. Ry. Co., 103 Cal. 614, 37 Pac. 150, 42 Am. St. Rep. 149.) The mischief toi be remedied may be greatest in the first instance. (McCall v. Village of Saratoga Springs (Sup.), 9 N. Y. Supp. 170; Id., 121 N. Y. 704, 24 N. E. 1100.) The first grade of Broadway street was that provided by nature, and the аlteration-made by appellant was as ‍​‌​‌‌​‌‌‌‌​​‌​​‌​​​‌‌​​‌‌​​​‌​‌​‌​‌‌​​​‌‌​‌‌‌​​‌‍much a change of grade as if the change had been made from a grade previously established by the authorities. (Hendrick’s Appeal, 103 Pa. 358; O'Brien v. Philadelphia, 150 Pa. St. 589, 24 Atl. 1041, 30 Am. St. Rep. 832; McCall v. Village of Saratoga Springs (Sup.), 9 N. Y. Supp. 110; Id., 121 N. Y. 104, 24 N. E. 1100; Blair v. City of Charleston, 43 West Va. 62, 26 S. E. 341, 35 L. R. A. 852, 64 Am. St. Rep. 837.)

As to whether the appellant isi liable “undеr1 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 doubtlеss true that the constitution does not authorize a remedy for every diminution in the value of property whiсh 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. *34El. Ry. Co., supra), in the case at bar it is practically conceded that respondent is entitled to damages' ‍​‌​‌‌​‌‌‌‌​​‌​​‌​​​‌‌​​‌‌​​​‌​‌​‌​‌‌​​​‌‌​‌‌‌​​‌‍in the amount of the judgment rendered provided the appellant is liable at all.

We think the оperation of this section of the constitution ought not to be restricted. The declarations of сonstitutions 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 enormоus property aggregation, where the power of eminent domain is pressed to such an extent, аnd when the urgency of so-called public improvements rests as a constant menace upon thе 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 arе of the opinion that the judgment ought to be affirmed.

Pee Cueiam. — For the reasons stated in the foregoing opinion, the judgment is affirmed.