Opinion
No. 23154
Decided February 3, 1932.
Municipal corporations — Assessment of damages for change of street grade — Application for jury to be made, when — Improvement completed when change of grade effected, although minor operations unfinished.
When an ordinance providing for change of grade requires the director of law of a city to make application for a jury in the manner provided by law, for the purpose of determining the damages resulting to property by reason of such change of grade, within ten days after completion of such improvement, such improvement is completed when the change of grade has been effected, and all other improvements necessary or incident thereto have been completed, except those of minor importance, which will in no wise affect either the damage or the grade.
ERROR to the Court of Appeals of Cuyahoga county.
This case arose as a mandamus action instituted in the Court of Appeals of Cuyahoga county. The petition was as follows:
"Harold H. Burton is now and for more than one year has been the duly appointed, qualified and acting Director of Law of the City of Cleveland, Ohio.
"Sarah Powers and Charlotte Powers are and at all times referred to in this petition were the owners in fee simple of the following described parcel of land:
"Situated in the City of Cleveland, County of Cuyahoga and State of Ohio, and known as being all of Sublot Number Twenty-nine (29) in E.S. Willard's Subdivision of part of Original One Hundred Acre Lot Number 410. Said Sublot Number Twenty-nine (29) has a frontage of 52 feet on the easterly side of East 105th Street and extends back of equal width 150 feet deep, according to the Plat of said Subdivision recorded in Volume 5 of Maps, page 48 of Cuyahoga County Records.
"Said property is improved to grade established in 1910, with two double houses and one single house.
"The Council of the City of Cleveland, the 18th day of February, 1929, passed Resolution No. 86,454 declaring its intention to change the grade of East 105th Street by raising the grade in front of relators' property seven and five-hundredths (7.05) feet at the south line and five and six-hundredths (5.06) feet at the north line.
"March 1, 1929, notice of the adoption of said resolution No. 86,454 was delivered to relators stating that claim for damages must be filed within two weeks.
"The relators filed, March 15, 1929, with the city, a claim for damages.
"May 6, 1929, the Council of the City of Cleveland passed Ordinance No. 87280 providing that whereas the grade of East 105th Street is changed, all claims for damages resulting by reason of said change of grade shall be judicially inquired into upon the completion of the improvement provided for under Resolution No. 86,454, and that the Director of Law shall make application for a jury in manner provided by law to a court of competent jurisdiction in Cuyahoga County, after the completion of the improvement, for the purpose of determining the damages resulting to all property affected by reason of such change in said street.
"The change of grade on East 105th Street has been raised in front of relators' property by the construction of concrete walls seven and five-hundredths (7.05) feet high at the south line and five and six-hundredths (5.06) feet high at the north line in March, 1930, and immediately thereafter, the street was filled to the elevation and to the extent provided by said ordinances and resolution; new and permanent water connections were made; the curb set; the street car tracks laid in concrete; and a hard surface pavement placed on said street from curb to curb.
"On September 12, 1930, said improvement was completed and East 105th Street and the other streets connected therewith were opened by the City of Cleveland for all traffic and ever since said date has [have] been opened continuously and without any interruption for all pedestrian, vehicular and street car traffic.
"There has been no work done on said change of grade since the 12th day of September, 1930.
"Relators, May 29, 1931, requested the Director of Law of the City of Cleveland to make application for a jury within ten days for the purpose of determining the damages resulting to relators' property by reason of such change in said street, but said Director of Law refused so to do.
"The City of Cleveland has not proceeded in good faith or with reasonable diligence with the work of said improvement.
"Wherefore, relators pray that a writ of mandamus issue commanding defendant to make application for a jury in a manner provided by law for the purpose of determining the damages resulting to relators' property by reason of such change in said East 105th Street."
The answer, after making certain formal admissions, including the admission that the relators had requested the respondent to make application for a jury within ten days for the purpose of determining relators' damages, further admitted that "the geographical allegations, reference to legislation and to grade changes contained in the petition are true."
After certain preliminary statements with reference to legislation adopted by the city of Cleveland in connection with the establishment of the new Union Station, the answer contains the following allegations:
"Thereafter, and on October 1, 1928, the Council of the City of Cleveland duly passed ordinance No. 84584 in which, after referring to ordinance No. 83240 above mentioned, it was ordained that notice of the passage of said ordinance No. 83240 and also 84584 and of the intention of Council to change the grade and otherwise alter the streets in conformity with the provisions of said ordinance, should be served upon each owner of property abutting upon said street and that all claims for damages be filed with the clerk of Council within two weeks thereafter, and that all such claims for damages resulting from such change of grade, vacation, re-arrangement, relocation or other alteration, as provided for in said ordinance, shall be judicially inquired into after the completion of said improvement.
"Respondent says that thereafter, and on February 18th, 1929, the Council of the City of Cleveland duly adopted resolution No. 86454, declaring the intention of formally re-establishing the grade of East 105th Street and other streets in accordance with provisions of ordinance No. 83240, above recited, in which is contained the technical and precise description of the changes to be made and also in which the Director of Finance was directed to serve a copy thereof upon the owner of each lot and relator.
"Respondent further says that on the 6th day of May, 1929, Council of the City of Cleveland duly passed ordinance No. 87280 in which, after reciting the resolution No. 86454 and ordinance No. 83240, both referred to above, and that notices thereof had been served and claims for damages filed, it was ordained that all claims for damages resulting by reason of said change of grade shall be judicially inquired into upon the completion of the improvement provided for, and that the Director of Law should make application for a jury in the manner provided by law after the completion of the work for the purpose of determining the damages resulting therefrom.
"Respondent further says that the improvement provided for by the legislation herein referred to along East 105th Street and in front of the premises claimed to be owned by relator has not yet been completed, but that there yet remains to be done the following things, to wit: the placing of water lines and gas lines, construction of permanent street car tracks, and placing of permanent sidewalks and street paving; that a great deal of work has already been done, but that it has been necessary to await the settling of the fill in the approaches before proceeding with the completion of the improvement, and that only for the purpose of affording traffic and property owners temporary relief, have a temporary pavement, sidewalks, and temporary water lines been put in; that all delays claimed in the petition to have been created by Respondent have been due solely and only to natural causes in the progress of the work.
"Further answering, respondent denies each and every allegation contained in Relator's petition save and except such as are herein expressly admitted to be true.
"Second defense. Respondent, for its second defense to Relator's petition says that Relator has a complete and adequate remedy at law in that he may file at the proper time an action for damages against the City and the Railroad Company."
The relators filed no reply.
The Court of Appeals, on trial, ordered that a peremptory writ of mandamus issue against the respondent, commanding him as director of law for the City of Cleveland, Ohio, to make application for a jury in the manner provided by law to a court of competent jurisdiction in Cuyahoga county, for the purpose of determining the damages to property arising by reason of the change of grade of East 105th street, Cleveland, Ohio, as set forth in the petition. Error proceedings were thereupon prosecuted in this court.
Further facts are stated in the opinion.
Mr. William J. Dawley, for plaintiff in error.
Messrs. J.R. H.R. Snyder, for defendants in error.
It was conceded by the director of law, upon hearing of the case below, that: "Pursuant to the above resolutions and ordinances, work has proceeded along East 105th Street in front of the property line of relators to a point where the grade of East 105th Street has been raised to the heights as set forth in Resolution Number 86,454 in so far as it pertains to the retaining walls. The street curbs and street car tracks have been set to their final elevation."
It is, however, the contention of the city that while the street was opened to traffic on September 12, 1930, with pavements laid, street car tracks in operation, and the curb set, this construction is temporary only; that the fill is not yet set; and that the permanent improvement will require various other operations to be consummated in the street. The relators concede this fact by their failure to file a reply.
The director of law therefore urges that the time set for making application for a jury to assess damages under the ordinance of May 6, 1929, namely, "after the completion of the improvement," has not yet been reached.
What, then, in contemplation of law, is the meaning of the phrase in the ordinance of May 6, 1929, "the completion of the improvement"?
Under the statute, Section 3829, General Code, and the Charter of the City of Cleveland, Section 119, and the ordinance, the director of law is under the positive obligation of making application for a jury for the purpose of determining the damages within ten days after the improvement has been completed. He has no discretion in the matter, and the duty is specially enjoined upon him by law. Moreover, to remit these property owners to a damage suit instituted by themselves, with all the cost and delay entailed, is not an adequate substitute for the remedy provided in their behalf under the charter, the ordinances, and the statutes. Hence mandamus lies (Section 12283, General Code), if the improvement is completed. We proceed to consider that question.
We are compelled to construe this ordinance with the Constitution in mind, which provides in Section 19, Article I: "Private property shall ever be held inviolate but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money: and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner."
It was held in the case of Waid, Director of Highways, v. Heistand, 122 Ohio St. 615, 174 N.E. 139, that statutes deferring payment for the taking of private property for the purpose of the elimination of grade crossings are constitutional, and this principle is applicable to ordinances of the same character.
If, under the terms of an ordinance deferring payment until the completion of the improvement, public officials can withhold payment for an indefinite period of time upon the ground that the improvement is not completed, the constitutional guaranty is certainly nullified, for the provision necessarily contemplates payment for the damage sustained within a reasonable time after the damage has been incurred.
From the standpoint of the public, this improvement was completed, as a street. The pavement was laid, the curb was set, the utilities were in, and the street car and other traffic was operating continually over the street. While some of the work remained to be done it some time in the future, whenever the city should decide to do it, the street was eminently a street de facto, and ready for use. Fernald v. City of Boston, 66 Mass. (12 Cush.), 574.
So far as the practical purpose of highway travel is concerned, the street is completed. The settlement of the fill will alter neither the damage nor the grade now established. The other operations which remain to be consummated, in comparison with the construction as a whole, are minor only. Hence the judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, DAY and KINkADE, JJ., concur.
ROBINSON, J., concurred in the judgment.
HON. CARRINGTON T. MARSHALL, CHIEF JUSTICE, } HON. THOMAS A. JONES, } HON. EDWARD S. MATTHIAS, } HON. ROBERT H. DAY, } JUDGES. HON. FLORENCE E. ALLEN, } HON. REYNOLDS R. KINKADE, } HON. WILL P. STEPHENSON, }