81 W. Va. 607 | W. Va. | 1918
This review deals with a judgment against the City of Huntington for the alleged impairment of the value of a lot abutting 80 feet on Davis Street, occasioned, it is claimed, by lowering the street grade in front of it. Although the street apparently formed part of, and co-ordinated with, the general municipal street system or plan, the city did not lay it out. nor formally accept or adopt it; though the public did use it and the city exercised some control over it, as if it were a thorofare adopted for the general use of the public.
When and before plaintiff purchased the lot ih 1912, the surface of the street remained, with slight variation, in its initial or natural condition and so continued until 1916 when the grading complained of was done under the direction of the proper municipal authorities according to the detail plan prepared by the city engineer and approved by them in that year.
Two partially inconsistent theories of liability are advocated, one by plaintiff, that the usage of the street by the public at the natural grade with the knowledge and ac
Though the declaration contained no averment, if any were necessary directly or inferentially, warranting the introduction of any evidence on the subject, plaintiff as a witness on his own behalf on the trial was permitted, over objection timely interposed, to testify and did testify that at his. request an attache of the city engineering department located for him the corners of the lot and informed him what the grade of the street was; and that acting upon this information he lowered the surface of the lot and erected the building thereon, wherefore by way of an additional reason he concludes that defendant is liable for any injury due to a variation from the grade so reported. Ewing did by survey ascertain and did by stakes designate the lot corners about the time fixed by plaintiff, for which service the attache received the usual compensation; but this work did not pertain to the engineering department. Speaking from a memorandum in the office, Maupin, the city engineer, and Ewing admit the location of the corners and the receipt of the fee but say the memorandum shows no other work was done and the memorandum impliedly corroborates them. They agree also in saying in effect that no corporate action was taken by the city as regards the establishment of such grade until 1^16, more than two years after the survey, and that they had no authority to fix grades at all.
Primarily, the legislative department of the state govem- '
The authorities are not harmonious upon the question whether under a constitutional provision such as óur sec. 9, Art. III, requiring compensation for property taken or damaged, an injury to property occasioned by a change from the natural or initial grade, one not regularly established by councilmanie action, requires the city to respond in damages for the wrong done. Some of them say no such liability ensues. There is, however, a general concurrence of decision that an owner who improves his property without regard even to a regularly established paper grade has no cause of complaint for the injury done; this upon the theory that it is not unjust or unfair but right, all interests being considered, that the purchaser should take notice of such grade and conform with it in afterwards placing improvements on his lot: Denver v. Vernia, 8 Colo. 399; Reilly v. Ft. Dodge, 118 Ia. 633; Manning v. Shreveport, 119 La. 1044; Clinken-beard v. St. Joseph, 122 Mo. 641; Omaha v. Williams, 52 Neb. 40; Groff v. Philadelphia, 150 Pa. St. 594; Gray v. Salt Lake City, 44 Utah 204; Jones v. Gillis, 75 Wash. 688; Blair v. Charleston, 43 W. Va. 62; In re Vyse St., 95 N. Y. Supp. 893. In other jurisdictions and here according to some decisions the rule is that where injuries result to property improved to conform with a recognized natural grade alterations therefrom whether done negligently or not entitle the owner to compensation.
There is in the record proof sufficient to warrant the assumption of the actual existence of a grade established by such use, in which the city acquiesced or which it recognized, as to impart to the highway the character of actual adoption by the authorities intrusted with control. This usage, acquiescence and recognition furnish the basis for assuming the establishment of a grade and does not preclude recovery merely because the municipality has not by an ordinance or resolution actually established a fixed grade for the street.
The decisions of other states adopt the same principia. jjad defend it as1 being most equitable to the owners of the property injured by the alteration of a natural grade relative to which they built to another grade whereby the market value was materially diminished; and at the same time as sufficiently conserving the public interest committed to the city whose duty it is. to cause the least possible harm in making necessary street improvements: Folmsbee v. City of Amsterdam, 142 N. Y. 118; Hunt v Village of Otego, 145 N. Y. Supp. 495; Davis v. Missouri Pacific Ry. Co., 119 Mo. 180; Fayetteville v. Stone, 104 Ark. 136; Chapman v. Staunton, 246 Ill. 394; O ’Brien v. Philadelphia, 150 Pa. 589; Eachus v. Los Angeles Ry. Co., 103 Cal. 614; Sallden v. Little Falls, 102 Minn. 358; Stocking v. City of Lincoln, 93 Neb. 798; Hempstead v. Salt Lake City, 32 Utah 261; Pueblo v. Bradley, 23 Colo. App. 177.
The applicability and aptness of these decisions to the facts proved would be conclusive upon the question of liability involved were it not admitted repeatedly by the plaintiff when testifying as a witness in his own behalf that when he purchased the lot and erected the residence on it he knew, or to use his own term “presumed,” the natural grade necessa
Logically what has been said introduces the further inquiry whether the owner of a lot who has caused it to be improved by the erection of a building thereon with respect to the initial or natural grade, knowing it necessarily would eventually be altered to serve the public use by rendering it more accessible and convenient, may recover for the injury done to the lot alone or the lot as improved where the injury results from changes in a grade made imder the directions of a municipality in the exercise of a lawfully delegated power. On this subject there is not uniformity in judicial opinion. Some authorities do not sanction the distinction between the lot and the improvements thereon but permit the assessment of damages for the depreciation in the market value of the property as a whole. See note to Gray v. Salt Lake City, supra, Ann. Cas. 1916 D, 1135. This court among others, however, has differentiated as to the recovery where the lot was improved in disregard of a paper grade line already established but not yet carried into execution and has enforced the right to compensation for the injury done to the lot alone but denied it as to the buildings thereon: Davis v. Missouri Pac. Ry. Co., 119 Mo. 180; Groff v. Philadelphia, 150 Pa. St. 594; Blair v. Charleston, 43 W. Va. 62; Gray v. Salt Lake City, supra. The principles upon, which these decisions are predicated and their rationale vindicate justice and fairness
While this right to compensation for injury to the lot without the building exists, is there such right of recovery for the injury done to the building also or the property as improved when the building was erected, notwithstanding the anticipated necessity for an alteration of such grade? The rationale of the differentiation is not difficult of discernment. No valid reason interfered to prevent plaintiff from purchasing the lot at the time he chose to buy it. That right cannot be denied. He acquired it when the street was at its natural grade supplemented by use, recognition and acquiescence, and by the municipal grant of a franchise. But not so as to the building. He improved the lot in anticipation of what has occurred, but not to that extent. Having made his election and assumed the risk he must endure the consequences: Blair v. Charleston, supra; Davis v. Missouri Pac. Ry. Co., supra. The fact admitted or presumed by him of the probability and necessity of- the alteration while not foreclosing recovery for the injury to the lot does have that effect as to the building. It was within his power to prevent the injury to it but he failed in the attempt. He did not apply where application would have availed. This failure, however, does not relieve or benefit him now.
The only other important question is whether, as counsel argue, the joining of the plaintiff with others in a petition requesting the municipal authorities to pave Davis Street
What has been said suffices as a response to other questions, presented and discussed by counsel and as the reason for reversing the judgment and remanding the case for a new trial..
Reversed and remanded.