Mauldin v. Greenville, 42 S.E. 202

42 S.E. 202 | S.C. | 1902

August 11, 1902. The opinion of the Court was delivered by This is a special proceeding by W. L. Mauldin, under sec. 30 of the charter of Greenville city, to secure compensation for damages to his property abutting on Main street of said city, resulting from the lowering of the grade of said street. The board of arbitrators appointed pursuant to said section of the charter as the special tribunal to assess the amount of damages awarded Mauldin $1,000 as damages. Both parties appealed to the Circuit Court, and the issue of the amount of damages was submitted to a jury under instructions from the Court, and the jury found a verdict in favor of the plaintiff for $2,000. From the judgment entered thereon, on motion of defendant, the defendant appeals upon numerous exceptions set out in the case and herewith reported.

The first question arises on respondent's motion to dismiss the appeal on the ground (1) That there is no authority for entering judgment upon a verdict in a special proceeding like this; and (2) that there is no right of appeal from the verdict in such proceeding. Whether this proceeding be deemed an action or a special proceeding, the statute provides for the submission of the issue to a jury in the Court of Common Pleas. Sec. 286 of the Code provides that if a different direction be not given by the Court, the clerk must enter judgment in conformity with the verdict. We see no reason why judgment may not be entered on a verdict in an issue in this form of proceeding as in other civil proceedings. The design of the statute was to give a summary and expeditious mode of securing compensation, and it is not at all probable, in the absence of specific language indicating such intent, that the statute merely intended the verdict of the jury in the Court of Common Pleas to operate merely as an award upon which another action must be brought to make it effective. The entry of judgment was, therefore, properly made. If the party in whose favor the verdict is, does not enter, or cause to be entered, any judgment thereon, the other party desiring to appeal may cause judgment to be entered thereon, as in this case. The judgment is one from which an appeal may be taken, as shown in the case of Railroad Co. v. Railroad Co.,57 S.C. 321, 35 S.E.R., 553; for if the proceeding be regarded as an action removed into the Court of Common Pleas from an inferior jurisdiction, an appeal would lie under subdivision 1 of sec. 11 of the Civil Code of Procedure; and if it be regarded as a special proceeding, it is appealable under subdiv. 3 of the same section.

While the appeal from the award of the arbitrators was pending and before trial in the Circuit Court, the city council of Greenville brought an action against W.L. Mauldin for an injunction to restrain the further prosecution of the special proceedings, and obtained a temporary injunction, which was dissolved afterwards. Before the trial herein, the city council having given notice of intention to appeal from the order dissolving the temporary injunction, objected to proceeding with the trial until after the determination of said appeal from the order of dissolution. This was overruled, and to this ruling appellant excepts. We see no error in this. When the temporary injunction was dissolved, there was no obstacle to proceeding with the hearing, as the notice of intention to appeal from the order dissolving the temporary injunction could not operate to restore the injunction.

The second exception imputes error in not sustaining defendant's motion to dismiss plaintiff's appeal from the decision of the arbitrators upon the ground that it was too general and indefinite. The same might be said of this exception. The point which appellant argues under this exception is that plaintiff's notice of appeal stated no grounds upon which a review of the proceedings before the arbitrators would be asked. In the case of AtlanticCoast Line R.R. Co. v. South Bound R.R. Co., 57 S.C. 317, it was held necessary in an appeal from condemnation proceedings for right of way under sec. 1747, Revised Statutes, that the grounds of appeal be stated. This, however, was because the statute giving the right of appeal expressly required "notice of the intended appeal, with the grounds thereof," to be served, and provided for the submission of an issue to the jury, "if the Court shall be satisfied of the reasonable sufficiency of the grounds." The statute in the case here contains no such requirements. The clause of sec. 30 of the city charter relevant to this matter is as follows: "Provided, That either party may appeal from such assessment to the Court of Common Pleas for said county by serving written notice of such appeal upon the other party within five days after such assessment shall have been made, when the issue of value shall be submitted to a jury." The court was correct in not adding a condition to the appeal and submission to a jury, which the statute did not impose.

Exceptions 3 to 16, inclusive, relate to rulings as to admissibility of testimony. Exception 3 imports error in allowing the witness, W.L. Mauldin, to testify that G.L. Norman was city engineer at the time the witness said he obtained the grade of the sidewalk for the purpose of erecting the buildings, and in allowing the witness to testify that G.L. Norman fixed the grade for the plaintiff; the objection being that the records of the city council were the best evidence of the fact, and there was no testimony to show that G.L. Norman had authority to establish grades. It appears that W.L. Mauldin was mayor of the city at that time, and was in a position to know who was city engineer. It is not always necessary to prove the written appointment of officers. It was sufficient in this case to prove that the officer acted and was recognized as such. Besides this, it appears that later in the testimony it was shown from the minute book of the city council that G.L. Norman was the city engineer. But further, such testimony was immaterial, as plaintiff's right to recover compensation and the amount of his compensation did not depend upon whether his buildings had originally been erected with reference to a street grade obtained from the city engineer, and in this view it was immaterial whether the city engineer had power to fix grades or not.

The other exception as to rulings as to the admissibility of testimony were discussed by appellant only in so far as the testimony related to the measure of damages, appellant's general contention being that the rulings referred to in the exceptions violated the rule that the measure of damages in this case was the difference between the market value before and after the lowering of the street grade. Conceding this to be the correct measure of damages, we do not think the Circuit Court erred in admitting the testimony as to the costs of lowering the floors of the buildings to conform to the street grade, or as to the loss of tenants in the event such changes in the buildings were not made. The market value of property depends very largely and usually upon its rental value, and the rental value would largely depend upon the convenience of ingress and egress for customers and the handling of wares and merchandise, and this would be much affected if the sidewalk and street grade were materially below the floors and entrances of the store buildings. These were but elements or factors which would ordinarily enter into a correct estimate of the diminution in value of the buildings by reason of the changes made necessary by the alteration of the street grade. The rule as to the true measure of damages contended for by appellant was substantially charged to the jury in these words: "If you think that the lowering of the grade from what it formerly was has left his property in such condition as to leave it less valuable than it was before, then (what) he has been deprived of, either in the loss of tenants or dimunition in the value of property, or the expense that he has been put to, will be the amount of compensation which he will be entitled to have awarded him."

The remaining exceptions, which relate to the right of plaintiff to compensation, or the liability of defendant to make compensation for damages done to abutting property by altering the street grade, as provided in sec. 30 of the city charter, have all been conclusively disposed of adversely to appellant's contention, in the cases ofMauldin v. City Council, 53 S.C. 287, 31 S.E.R., 252;Garraux v. City Council, 53 S.C. 575, 31 S.E.R., 597;Water Power Co. v. City Council, 53 S.C. 82, 30 S.E.R., 699, and the case of City Council v. W.L. Mauldin, decided at this term. All exceptions overruled.

The judgment of the Circuit Court is affirmed.