40 Minn. 304 | Minn. | 1889
This action is for the recovery of the value of a large quantity of stone, quarried by one Patterson from Thirteenth
It appeared upon the trial of the cause that the grade of this avenue had never been established by the city council, there having been established only what is termed a “preliminary grade” by the city engineer, for the purpose of carrying on public improvements; that the rock which is the subject of this action had been taken from below this temporary grade; that the ledge thus excavated and removed was, in depth, from the surface of the soil, some nine or ten feet; that (as appears from the testimony of Patterson that he fulfilled the contract) all the rock in the street to that depth, and to the whole
We think that it appears conclusively from the case that the removal of this stone was not for the purpose of grading this street; for the contract provided for refilling by the contractor after all the stone should be removed, as was in fact done, although the excavation was not refilled quite to the original level. It view of what was by the terms of the contract to be done, the statement embodied in it as to the reasons or purposes in view cannot be here accepted as showing that the grading of this street was one of the purposes for which the stone was to be removed. We consider, also, that the conclusion is to be drawn from the case that the rock was excavated the whole width of the street, not because that was necessary in order to construct the sewer at the proper level, but because the city could thus secure the construetien of the sewer without expense, the contractor being compensated for doing the work by the large quantity of stone thus secured for his own use. The right of the city to dispose of the stone in the manner above indicated and the measure of the plaintiff’s damages 'are the principal questions involved in this case. We have not-hitherto been required to determine such questions, under the circumstances here presented.
In considering the principles to be applied in the determination of the case, a distinction is to be observed, depending upon the fact as to whether the excavation and removal of the material in question is reasonably necessary on the part of the city for purposes properly connected with the public easement, or, not being of that character, is to be deemed an unjustifiable invasion of the rights of the owner of the soil. Accordingly we separate the subject of this action into two parts, and will first consider the case with regard to so much of the stone in question as was not reasonably necessary to be quarried for the purposes of the construction of the sewer.
As has already been intimated, the case does hot show a justification for the quarrying of the .stone through the whole width of the street, and far below the surface. It was not necessary for the grad
The proper measure of damages should be distinctly settled, so far as seems necessary for the purposes of this case. There is a marked tendency in the modern decisions, in awarding damages for the conversion of property, where by the acts of the wrong-doer the property has been greatly increased in value, but where the defendant is not chargeable with intentional wrong, or with such conduct as merits the awarding of punitory damages, to apply the rule of actual compensation for the injury or loss suffered, without allowing the plaintiff to profit by the valuable service which others have bestowed upon the property. 3 Suth. Dam. 509, et seq., and cases cited. Without here indicating an unqualified acceptance of that rule, we only decide that it should be applied in cases like that under consideration, whenever the action of the public authorities is not characterized as intentionally or grossly wrongful'. The reasons in favor of this rule in such cases are as applicable as in actions between individuals, as in Hinman v. Heyderstadt, 32 Minn. 250, (20 N. W. Rep. 155;) Whitney v. Huntington, 37 Minn. 197, (33 N. W. Rep. 561.)
There is no claim made that the city is chargeable with any graver fault than ignorance of its legal rights, and the application of the rule to such a case is to allow as damages the value of the stone as it lay in the quarry. And this estimate should be based upon the assumption that the owner had the right to enter upon the street and take out the stone. Of course, he has not that right, unless special authority be conferred upon him; but the city ought not, in disregard of his property rights, and without legal justification, to quarry the stone, or authorize others to do so, and then, having thus secured the benefit of The full value of the stone, unembarrassed by the existence of the street over which it had control, defeat a recovery by the owner of the soil of more than nominal damages, by the plea that it would not have allowed him to quarry the stone from the street. The city should not be allowed to thus take advantage of its own wrong.
We come now to consider the rights of the owner of the soil as to stone within the street which it becomes necessary for the public to
The principle announced, that the city may dispose of what it is required to remove, and the difficulty in applying any other rule, may be made more clear by a consideration of the circumstances of this case. It is apparent, without proof directed to that point, that when the city undertook the construction of a sewer through this street, many feet below the surface of the ledge, it would have been impracticable to commit to the adjacent proprietors the work of quarrying and removing the stone, each in front of his own premises, and for the width which was necessary for that purpose — -probably a very few feet — on either side of the centre of the street. The objections to such a mode of carrying on public work of that kind it is hardly necessary to enumerate. The necessity for having the work done with expedition and without default; for unity of design and action; for the selection of proper persons and methods for blasting and removing the stone, both for the safety of the public in the use of the street and of those who may be employed in the work; for selecting and reserving from removal such part of the stone as might be needed for construction of the sewer;' and for carrying on at once the quarrying of the stone, the construction of the sewer, and the refilling of the excavation, which latter work could not be imposed upon the adjacent proprietors, — suggests sufficient reasons why each 50 or 60 feet in length of the work should not be assigned to different parties, (the lot-owners on each side of the street,) who might or might not undertake the labor if it were committed to them. Indeed, it is not probable that all if any of the proprietors would or could perform such a task, if allowed to do so. The city had to do this, either by the direct employment of labor or by contract, and must be allowed to carry on the work unembarrassed by the claims of adjacent pro
We have not assumed to state the law as to the removal of trees standing in the highway. It may be that in general it would be practicable to allow adjacent proprietors to remove them if they shall elect to do so, when removal becomes necessary. It must be conceded that there are few authorities directly supporting the conclusions expressed in the latter part of this opinion. We, however, refer to Upham v. Marsh, 128 Mass. 546. In that case the proper authorities, the highway surveyors, had authorized the defendant, who was one of the surveyors, to take earth from the highway where it crossed the plaintiff’s land, and to deposit it upon his own (the defendant’s) land. This was done as the best mode of lowering the grade of the highway and disposing of the material removed. The duty of removing the material was regarded by the court as implying a right to deposit it elsewhere, and it was considered that what was done was reasonably necessary and incidental to the convenient and proper execution of the work of repairing the road. “It follows,” says the court, “that the plaintiffs lost all title to the soil when so removed from land belonging to them, and they cannot maintain an action for
The result in this case is that a new trial must be granted, for the damages assessed — about $1,100 — were for the whole of the stone in controversy. The amount unnecessarily removed was not shown by the evidence.
Order reversed.