66 Cal. 492 | Cal. | 1885
This is an appeal by the defendant from the judgment. The judgment roll alone constitutes the record. The complaint states that the plaintiffs, during the times referred to in it, were the lessees of four certain lots of land on the south-west corner of the San Bruno road and Army street, in the city and county aforesaid, upon which they had constructed a store-house and two dwelling-houses, one of which dwelling-houses they had rented, and the other buildings were used and occupied by them ; that on or about the first of March, 1880, the defendant, by its legally constituted officers and agents, com
The pleader then proceeds to aver a presentment of a claim and demand to the board of supervisors of the defendant, for the injuries aforesaid, and the rejection of this claim- and demand by the board. The above are the substantial averments of the complaint. The verdict in favor of plaintiffs was for 1500.
As the case is presented by the record, this court is bound to assume that the verdict has affirmed every averment of the com
It will be observed that the theory on which the cause is rested is, that the defendant, in grading a street and constructing a sewer in the center of it, deposited earth, stone, and broken rock (heavy material) on the whole width of the street, to raise it to the established official grade, by reason of which, and the soft and yielding nature of the soil below, the subjacent earth was squeezed and pressed down and outwards, causing the displacement and destruction of the foundation on which the houses rested, and the injuries complained of; and that defendant, though notified, neglected to take measures to prevent this squeezing, pressure and displacement, from which the injuries counted on resulted. It may be observed here, that though the allegation of the complaint is that the defendant wrongfully and unlawfully displaced the natural soil of the land on which the plaintiffs’ buildings were constructed, it is not averred that it was done otherwise than by the settling and sinking of the soil of the street on which the weight of the heavy material deposited pressed. The plaintiffs and defendant concede that the displacement was caused by the pressing and squeezing out of the soil on which the material was placed, and it is averred that the place of deposit of this material was the street in its entire width.
It does not appear that the plaintiffs deny the right of defendant by law, to fill up and grade Army street to the official grade fixed by law, and to construct a sewer therein. This is clear from, the fourth subdivision of section 1 of the act of March 16th, 1878. This act is entitled “ an act to confer additional powers on the board of supervisors of the city and county of San Francisco, to provide for the opening of Army street, and the condemnation of private property therefor. (See Stats. 1877—78, p. 270.) As this act is not pleaded in justification of the grading and filling done by the city on the street referred to, it may be that it cannot be noticed. That need not be determined, as it is conceded by the plaintiffs that the power to do this work is conferred by section 74, subdivision 4, of the act of 1856, known as the “ Consolidation Act.” The cause will be considered on this admission of ample power in the defendant, to do the work of filling and grading Army street.
We do not understand counsel for plaintiffs to put forth any contention contrary to the rule above indicated. If the defendant was empowered by law to do the work counted on, in Army street, the averment in the complaint, that such work was unlawful and wrongful, would amount to nothing. Such epithets in a pleading are, in general, meaningless. They may be and are generally inserted with no valuable purpose, but only to round off or swell out a sentence. Unless the matters averred show the acts complained of to be unlawful or wrongful, such words are mere superfluous verbiage. They may and should be rejected as surplusage. It being conceded here that the defendant was engaged in a work authorized by law, we may reject the words “ unlawfully ” and “ wrongfully ” from the allegations of the complaint.
One of the main contentions of the plaintiffs is, that the defendant did the work unlawfully and negligently, for the reason that, after being warned by notice that it was by its acts inflicting damage on the property of plaintiffs, it continued to do the work inflicting such damage, without making use of any measures or taking any steps to prevent it. Does any such obligation, aside from a statute or constitutional provision imposing it, rest on the defendant in this case? It is not averred that the plaintiffs took any steps to ward off or prevent the damage resulting from the work, though they knew it was going on. We must hence conclude that they did not. We are not authorized to assume that they (the plaintiffs) took any such steps without averment and proof, and neither appear here. Applying the maxim, “ de non apparentibus et de non existentibus eadem est ratio,”—see Broom Leg. Max. (6th-ed.) *163,—and this is a proper case for its application, we are authorized to assume that plaintiffs stood by, calmly contemplated the injury to their property going on before their eyes, and took no steps to prevent it. The further question arises, Was it not a duty imposed
Nothing appearing to the contrary, we are bound to assume that the land in the street was acquired by defendant for a public purpose, by lawful means, and in a lawful manner. The injury was caused by the defendant improving the property, a public highway, which, under the law, it was entitled, as an agent of the state, to improve in the manner it was engaged in doing. No property of the plaintiffs was taken. It is only claimed to be damaged. The defendant, engaged in doing a lawful work, in the way of improving such property and constructing a highway for the use and benefit of the public, and in an especial manner for the persons owning property abutting on it, to which class plaintiffs belonged, caused the damage complained of.
We are of opinion that the law is well settled, that when a municipal corporation like the defendant is engaged in doing such work as is set forth in the complaint, in a lawful manner and without malice, no liability for damages attaches to it, unless such liability is imposed by some statute law, or the organic law of the state. The law is thus stated in Transportation Co. v. Chicago, 99 U. S. 635. In doing the work, the municipality was acting as the agent of the state, which has control over all highways, performing a public duty imposed on it by law. The Supreme Court of the United States, in the case just above cited, said, speaking by Strong, J.: “ It is undeniable that in making the improvement of which the plaintiffs complain the city was the agent of the state, and performing a public duty imposed upon it by the legislature. And that persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdiction and with care and skill, is a doctrine almost universally accepted, alike in England and in this country. It was asserted unqualifiedly in Governor, etc., Manuf’rs v. Meredith, 4 Durn. & E. 794; in Sutton v. Clark, 6 Taunt. 29; and in Boulton v. Crowther, 2 Barn. & C. 703. It was asserted in Green v. Borough of Reading, 9 Watts, 382; O’ Connor v. Pittsburgh, 18 Pa. St. 187; in Callender v. Marsh, 1 Pick. 418, as well as by the courts of numer
We think, also, that in accordance with the rule laid down in Shaw v. Crocker, 42 Cal. 437, there being no statute or constitutional provision changing the rule, the plaintiffs were bound to take steps to protect their own property from injury. In this case it appears that the plaintiff was the owner of several lots in Sacramento, fronting on First street, and of several frame buildings erected thereon. She substantially averred that the defendant and his servants wrongfully entered upon said lots ; “ unlawfully, willfully, carelessly, and negligently threw, deposited, and forced stones, gravel, and earth, and other solid
In the case just remarked on, the facts showed more of a physical invasion of the land than the case under consideration, and came nearer a taking of the property. The land on which the buildings stood was so covered with earth and other heavy material that the buildings were by such material forced from their foundations, and destroyed as buildings. In the case before us there was no entry on the plaintiffs’ property, nothing thrown, forced, or deposited on it; but in consequence of the pressure of the weighty deposit on the soil underlying the street and the earth beneath, and the soft, yielding nature of such underlying stratum, the lot of plaintiffs was forced outwards and upwards, and in consequence the foundations of the houses on it were injured. There was no entry on the adjacent land, and' no physical invasion of it is averred. Following, then, the rule of Shaw v. Crocker, supra, which we approve, we are of opinion that the obligation to support the foundations of the buildings, and to take care that their property should receive no damage, rested on plaintiffs, and that they, and not the defendant, are amenable to the charge of negligence and want of proper care. See, also, Transportation Co. v. Chicago, and Radcliff’s Ex'rs v. Mayor, etc., of Brooklyn, supra. Such damages as were sustained in Shaw s. Crocker are consequential, and are not the subject of an action which can he maintained without some provision of law, statutory or constitutional, giving it.
But the contention is also put forth by the plaintiffs that the constitution comes to their relief, and that they are entitled to recover, by virtue of the provision of the organic law of the
Are the plaintiffs, then, entitled to recover of defendant under this constitutional guaranty against damage ? This question is new in this court; this being the first cause coming before it since the adoption of the present constitution, requiring the decision of this question.
To what kind of damage does this word “ damaged ” refer ? We think it refers to something more than a direct or immediate damage to private property, such as its invasion or spoliation. There is no reason why this word should be construed in any other than its ordinary and popular sense. It embraces more than the taking. If it did not refer to more than the damage above mentioned, the word “ damaged ” in the clause relied on would be superfluous. It seems to us that the direct invasions spoken of would come within the clause as it stood in the constitution of 1849. If the word “ damaged ” only embraced physical invasions of property, the right secured by this word would add nothing to the guaranty as it formerly stood. In the case above cited from 99 U. S., the court said, referring to a clause in the constitution of Illinois similar to that in the constitution of this state in force since 1879, that “ this is an extension of the common provision for the protection of private property.” (Page 642.) This remark may have been obiter, as the case before the court was one occurring prior to the insertion of the clause in the Illinois constitution; but it seems to have been concurred in by the whole court, and if not so concurred in, it was the dictum of an able and learned jurist, whose
The declaration contained two counts. The first charged the defendant below (the city of Atlanta) with damages to plaintiff’s lots, by reason of its negligence in throwing earth on her lot in the grading of a street in said city, and thereby causing the overflow of her premises with sand and water, destroying her garden, and rendering it unfit for use and cultivation. The second count was for damages to her lot, resulting from the grading of the street bounding the same, by raising the level of said street fifteen feet higher than it was originally, opposite plaintiff’s lot, thereby permanently injuring her property and her fences, and making it difficult for her to have access to her home. The city tendered the following request to the court, to be given to the jury:
“ The city would have a right to grade the street in question, and no right of action would accrue to plaintiff from injuries caused by such grading, unless there was a direct invasion of the plaintiff’s premises ; and for such direct invasion of her lot, she would be entitled to recover the damages caused thereby.”
The question as to the meaning of the constitutional guaranty was here directly presented. It may be remarked, that as to the first count the plaintiff would be entitled to recover independent of any constitutional provision, as held in many cases ruled by courts of high authority. (See Pumpelly v. Green Bay Co., 13 Wall. 166; Eaton v. Boston C. & M. R. Co., 51 N. H. 504; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; Eastman v. Meredith, 36 N. H. 296; Weet v. Brockport, 16 N. Y. 161; Harper v. Milwaukee, 30 Wis. 365 ; Thurston v. City of St. Joseph, 51 Mo. 510. See other cases cited in 2 Dill. Mun. Corp., § 985, and note, and sections 1038 and 1052, and notes.) The city, by overflowing the land of another, as set forth in the first count, would be guilty of a nuisance which it can no more commit than a private individual-
“ But it is now claimed, and so the court instructed the jury, that this rule had been changed by a provision of the constitution of 1877, contained in the last clause of paragraph 1, section 3, of the bill of rights, which reads as follows : ‘ Private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid.' It is not denied by counsel for plaintiff in error that, under this provision of the constitution, for any direct and immediate damage done to private property, such as its invasion or the spoliation thereof, the city would be liable for damages, and be compelled to make just compensation, as by the constitution provided: but he insists that it was not the intent or purpose of the framers of that instrument to vary or change the rule, so well established and long recognized by the courts, that, in improving the streets by raising or lowering the grade thereof, the city would not be liable to respond to lot-owners bounding thereon for any consequential damages resulting therefrom. The duty devolves upon tins court, then, to construe, for the first time, this clause in the bill of rights. In previous constitutions the words varied from the present: ‘ Private property shall not be taken for public use
This decision is followed and approved by the same court, in Moore v. City of Atlanta, 70 Ga. 611.
These views of the Georgia Supreme Court are, in the main, true, and sustained by the following cases, decided by the highest courts of states having a constitutional guaranty similar to that of the constitution of this state. (City of Elgin v. Eaton, 83 Ill. 535; Rigney v. City of Chicago, 102 Ill. 64; Johnson v. Parkersburg, 16 W. Va. 402; City of Denver v. Bayer, 7 Col. 113; Williams v. Gulf, C. & S. F. Ry., 1 Denver Law J., No. 34, p. 267; Graves v. Same, 1 Tex. Law J. 8 ; Gottschalk v. Chicago B. & Q. R. Co., 14 Neb. 550 ; S. C. 16 N. W. Rep. 475.) In some of the cases just above cited, the damages for which compensation was sought by action were consequential; and it was held that they were recoverable under the constitutional guaranty against damage of private property in the exercise of public use. In City of Elgin v. Eaton the damages were consequent on grading the street to the grade fixed by law. Johnson v Parkersburg, City of Atlanta v. Green, and Moore v. City of Atlanta, are cases of a change from a grade formerly made. In such cases, when the work is done with the usual care and skill, there could be no recovery at common law; the injury inflicted is without damage, and the damage without injury, curtly expressed in the maxim “ damnum absque injuria.” The right of the owner of the property, who has sustained such damage, must yield to the promotion and advancement of the public good. He has become the owner of the property in subordination-to the right of the municipality, conferred by statute, to change the grade of the streets. (See City of Atlanta v. Green, and Moore v. City of Atlanta, supra.) There can, there
We are of opinion that the right-assured to the owner by this provision of the constitution is not restricted to the case- where he is entitled to recover as for a tort at common law. If he is consequently damaged by the work done, whether it is done carefully and with skill or not, he is still entitled to compensation for such damage under this provision. This provision was intended to assure compensation to the owner, as well where the damage is directly inflicted, or inflicted by want of care and skill, as where the damages are consequential, and for which damages he had no right of recovery at the common law. That no action for such consequential damage can be maintained by the common law, see Smith v. Washington, 20 How. 135, and O’ Connor v. Pittsburg, 18 Pa. St. 187; 2 Dill. Mun. Corp. § 990, and cases cited in notes. Ohio seems to be the only state where the contrary is held. See remarks of Bronson J., in Radcliff’s Ex’rs v. Mayor, etc., of Brooklyn, and Smith v. Washington, supra; Crawford v. Delaware, 7 Ohio St. 459, in which the Ohio Supreme Court admits that the rule held by it is in conflict with the decisions both in England and America, and known to be so when decided. The rule above stated is established by such a preponderance of authority that we forbear to dwell further on the point. The cases will be found under the above references, and we will only add that they establish the rule above declared to be law.
We cannot think that the convention inserting in the constitution of this state the word “ damaged ” in the connection in which it is found, and the people in ratifying the work of the convention, intended to limit the effect of this word to cases where the party injured already had a remedy to recover compensation. They engaged in no such empty and vain work. It was intended to give a remedy, as well where one existed before as where it did not; to superadd to the guaranty found in the former constitution of this state, and in nearly all of the other states, a guaranty against damage where none previously existed. The provision includes damage to private property, includ
We do not intend to say, nor do we think, it extends to such damage as the owner of the property injured sustains in common with the other abutters on the street or the general public, but only to that special injury which he receives oyer and above such common injury. See remarks of Bronson, J., speaking for the court, in Radcliff’s Ex’rs v. Mayor, etc., of Brooklyn, supra, 206, 207 ; observations of Lord Westbury, in Ricket v. Metropolitan Ry. Co., L. R., 2 Eng. & Ir. App. Cas. 203. Here the damage is to the houses affixed to the land. This is special damage to the plaintiffs, for which they are entitled to recover, though they may be of the class usually styled consequential.
By reason of the foregoing, we are satisfied and hold, that the complaint states a cause of action, and as the facts of such cause of action are affirmed to exist by the verdict, the plaintiffs are entitled to judgment on this point. We" are of opinion that the claim was properly presented to the board of supervisors. The law spoken of in the eighty-fourth section of the consolidation act, to which reference is to be made, is a statute ; for it is to be referred to by its title, date, and section. The claim here is not made under a statute. There is nothing in the point made on behalf of the defendant, that it must be regarded as a county, and therefore is not suable. It nowhere appears in the case that the plaintiffs have received any compensation for the injury sustained by them.
We find no error in the record; and the judgment is affirmed.
Sharpstein, J., and Myrick, J., concurred.
Hearing in Bank denied.