29 Iowa 148 | Iowa | 1870
The grant of the right to build and operate the bridge is clear and certain ; and this grant carried with it all the incidental rights and powers which were requisite to the efficacious and beneficial exercise and enjoyment of the right. And among these there must, of course, be included the right to construct necessary and suitable
II. The next question in natural order arising is, whether the city council of the city of Des Moines was itself possessed of authority to grant such rights to the defendant. - And this, under our previous decisions, does not admit of any doubt. Milburn v. The City of Cedar Rapids, et al., 12 Iowa, 246; The City of Des Moines v. Hall, 24 id. 234; The City of Clinton v. The C. R. & M. R. R. R. Co., 24 id. 455. Whether the defendant was or not entitled to the same rights under the statutes, even in the absence of any grant by the city of Des Moines, we need not now discuss or determine.
III. And, finally, is the defendant liable for the consequential damages resulting to plaintiff by the construction of its road, bridge and approaches in the manner it has done, which, as we have seen, was authorized by law and ordinance of the city ? For it will be remembered, the defendant avers in the answer demurred to that the bridge was properly located and constructed at the lowest practicable altitude ; that the embankment constituted the approach to the bridge, and the same was necessary and indispensable to the operation of the bridge, and was constructed in good faith and without negligence.
The supreme court of Pennsylvania, in an opinion prepared by Thompson, Ch. J., and announced last month, in the case of Woodward & Vincent v. Wells, (Legal Gazette, vol. 2, No. 23, June 10, 1870,) laid down this doctrine : “Consequential damages are never recoverable
We have examined the cases cited by the appellee’s counsel in support of their view, which is in antagonism to the general proposition we have just above stated, and also other cases. But those cases do not conflict with our general rule. The case of State v. The Ohio and Miss. R. R. Co., 7 Ind. 479, is where the railroad company constructed its road along a street and upon a grade not authorized by law or the ordinance of the city, and the court held that it was “an unauthorized earth embanlcme-nt and obstruction of a public highway,” for which defendant was liable; and the court expressly say that it will not decide whether the city might not authorize the embankment, for there was no showing that it had. In Haynes v. Thomas, 7 Ind. 38, it was held that the acts of the defendants were not authorized by any constitutional law; so in Gardner v. Newbury, 2 Johns. 162. The case of The E. & C. R. R. Co. v. Dick, 9 Ind. 443, was where the company had constructed an embankment across a bayou,
In Brown v. The C. & S. R. R. Co., 12 N. Y., 486, the act of incorporation left the company liable for consequential injuries to persons resulting from building their road across streams, etc. The case of Lawrence v. The G. N. R. R. Co., 16 Ad. & L. 643, was'for obstructing water by reason of insufficient openings, etc. It was held that, as by proper caution the injury might have been avoided, the company was liable. So, also, in the cases of Rochester White Lead Co. v. The City of Rochester, 3 N. Y., 463; Radcliff v. Mayor of Brooklyn, etc., 4 id. 195; Bailey v. Mayor, etc., 3 Hill, 531.
The following cases will be found to support the conclusion in this. Mason v. M. & P. R. R. Co., 31 Me. 215; Aldrich v. Cheshire R. R. Co., 1 Fost. 356; Bloodgood v. M. & H. R. R. Co., 14 Wend. 51; Beekman v. S. & S. R. R. Co., 3 Paige, 45; Hatch v. Vermont Central R. R. Co., 25 Vt. 49; Dodge v. Essex, 3 Met. 380.
The city of Des Moines had the authority to change the grade of the street in front of plaintiff’s property, and that, too, without liability to plaintiff for any injury resulting to her property therefrom. This point has been frequently decided by this court, and is in accord with the current authorities. See Creal v. The City of Keokuk,
Eeversed.