Opinion
No. 30199.
November 14, 1932.
1. EMINENT DOMAIN. Landowner held entitled to damages, notwithstanding change in street grade was from natural, not official, grade.
It appeared that landowner had constructed improvements and that city had built sidewalk in front of his property with reference to natural grade of streets, no official grade having at that time been established, and that long afterwards city paved streets and raised grade to conform to official grade, which was then for the first time established, with resulting obstruction to drainage of landowner's property.
2. APPEAL AND ERROR.
Any error in allowing jury to consider cost of rebuilding sidewalk necessitated by changed street grade held harmless; landowner's verdict being smaller than cost of changing lot grade.
APPEAL from circuit court of Attala county. HON. JNO. F. ALLEN, Judge.
H.T. Leonard, of Kosciusko, and W.E. Morse, of Jackson, for appellant.
As a prerequisite to damages due to change of street grades it is frequently stated that the prior grade must be established as the written law prescribed, that is, by ordinance or resolution, or by some other former effective municipal action. According to this view therefore, to entitle an abutting lot owner to damages resulting from grading a street under laws allowing damages for a change of grade, usually he must show that there had been a prior established grade, and that the damage resulted by reason of a change thereof. The grade changed must have been established in a manner provided by law.
Almy v. Coggeshall, 19 R.I. 549, 36 A. 1124; Aldrich v. Providence, 12 R.I. 241; Cummings v. Dixon, 139 Mich. 269, 102 N.W. 751; Mattling v. Plymouth, 100 Ind. 545; Anderson v. Bain, 120 Ind. 254, 22 N.E. 323; 5 McQuillin Municipal Corporations, section 2125, page 480.
Under a law which permits the recovery for "established" grade of a street it is held that the establishment must be by ordinance or other proper legislative action.
Kepple v. Keokuk, 61 Iowa, 653, 75 N.W. 140.
Merely working streets or otherwise improving them is not sufficient to establish a grade.
Kepple v. Keokuk, 61 Iowa, 653, 75 N.W. 140.
A city can change the grade of a street only by proper order entered on its minutes and no person can acquire contract rights with a city affecting the grade of the street, except by having an order entered upon the minutes.
White's Garage v. Town of Poplarville, 121 So. 295.
The following instruction granted to the plaintiff was error. In estimating any such damages you should take into consideration the costs of restoring the plaintiff's property to the former level of evenness of the street in front thereof, including the sidewalk in the front of said property as may be shown by the evidence, and any and all other damages, which the evidence in this case may show resulted from raising the grade of said street in front of said property.
While it has been held that the cost of a new sidewalk is not a proper item of the damages recoverable for a change of grade, the value of an existing walk which has been destroyed may be taken into consideration.
44 C.J. 440, sec. 2769.
The only way that a city could be deprived of its right to use the grade established would be by establishing a new grade by proper orders on its minutes. The streets of a city are for the use of the public and when a grade has been established all damages accrue at once, which result from such establishing, although the actual conditions under which damages are suffered may thereafter operate. In other words, in the present case whatever damages were caused the abutting landowners accrued at the time the grade was established, and if such damages were not claimed, or were claimed and not paid, that would foreclose suit against their contentions growing therefrom.
White's Garage v. Town of Poplarville, 121 So. 295.
In the absence of statutory or constitutional provisions thereof the ordinary accepted rule is that there can be no recovery for consequential damage to property growing out of the original establishment of the grade of the street. A city upon a subsequent establishment of a grade cannot be held responsible for damages occasioned by the grading of abutting property to a grade within the fixing of which the city had no legal connection and for which it had no responsibility.
44 C.J. 427, section 2644.
A lot owner is not entitled to recover from a city for consequential damages to a lot adjacent to a street because of the original grading of the street when not done negligently, the street having been previously dedicated or acquired by the city for that purpose, since, where a street is dedicated or acquired by condemnation, it is implied that it may be graded so far as necessary to fit it for a highway, and it will be presumed that the inconvenience of the owner of adjacent property and the injury to such property from the grading were compensated for at the time of acquiring the right of way, either by the dedicator or by the jury in awarding compensation under a writ of ad quod damnum.
Owensboro v. Hope, 128 Ky. 524, 108 S.W. 873, 33 Ky. L. 375, 15 L.R.A. (N.S.) 996.
J.D. Guyton, of Kosciusko, for appellee.
If the grade was raised and damages thereby resulted to this property, then the plaintiff is entitled to recover such damages therefor as will fairly and fully compensate for all damages shown by the evidence thereby done, and the jury should consider in fixing the amount of damages the cost of restoring the status quo ante.
Murphy v. Meridian, 103 Miss. 110, 60 So. 49; Jackson v. Muckenfuss, 101 Miss. 555, 58 So. 533.
Under our constitution, where property owners have built their property with reference to a certain grade in a municipality, that grade cannot afterwards be changed so as to produce damages to the property owner, without compensating him for the damage done. This is just as true of a case where a municipality has failed heretofore to establish a grade, and initiates it for the first time, as of a case, when once having established it, it is changed.
Jackson v. Williams, 92 Miss. 301, 46 So. 551.
This is an appeal from a judgment of the Circuit Court of Attala county awarding to the appellee, R.W. Jenkins, who sued by his guardian, Mrs. Hattie A. Jenkins, three hundred dollars as damages to his property resulting from a change in the grade of the street upon which it abuts.
The lot upon which the appellee's residence and appurtenances are constructed is at the intersection of Wells and South streets in the city of Kosciusko, and the improvements thereon were constructed with reference to the natural grade of these streets; no official grade having, at that time, been established. On the natural grade of the street, the city constructed a concrete sidewalk along Wells street in front of appellee's property. Long afterwards, the city paved Wells street with concrete, and in doing so raised the grade of that street about one foot and filled it in to accord with the official grade then, for the first time, established. South street was also filled in to raise it to the same grade as Wells street. The result of raising the grades of these streets and filling them in, according to the evidence offered by the appellee, was to obstruct the drainage of appellee's lot and premises, and to increase the flow of water over said premises, and to cause water to accumulate and stand thereon, thereby greatly damaging his property. The evidence showed that the cost of filling in appellee's lot to the grade of the street would be three hundred eighty-five dollars, and that to so raise the surface of the lot would result in leaving the sidewalk in a depression with a bank or wall about one foot high on each side thereof. There was also evidence to the effect that it would cost about one hundred dollars to rebuild the sidewalk to the level of the street grade.
The appellant contends that the court should have granted the peremptory instruction requested, for the reason that the alleged damage did not result from a change of an official grade previously established, and, in support of this view, the case of White's Garage v. Town of Poplarville, 153 Miss. 683, 121 So. 295, 297, is relied upon.
Upon this point, the case of City of Jackson v. Williams, 92 Miss. 301, 46 So. 551, 554, appears to be controlling. The court there said that: "Under our Constitution it can make no difference whether the damage is occasioned by the initiation of the grade for the first time or the altering of an established grade. . . . Under our Constitution, where property owners have built their property with reference to a particular grade in a municipality, that grade cannot afterwards be changed, so as to produce damage to the property owner, without compensating him for the damage done. This is just as true of a case where a municipality has failed theretofore to establish a grade, and initiates it for the first time, as of the case when, once having established it, it is changed. The natural surface of the street, acquiesced in for a long while by the city, and to which the city has allowed its citizens to conform their buildings, may fix just as firmly an established grade, within the meaning of the Constitution prohibiting private property from being taken or damaged without due compensation, as if fixed by a corps of engineers. Nothing contrary to this is held in the case of Vicksburg v. Herman, [ 72 Miss. 211, 16 So. 434], but the doctrine herein declared is expressly recognized there."
There is nothing in the case of White's Garage v. Poplarville, that is in conflict with the above-expressed views of the court. In that case, there was an officially established grade of the street. Without a municipal order permitting it so to do, the abutting property owner raised the side of the street next to its property, in order to effect an entrance to its garage. Thereafter, the city paved the street on the originally established grade, and in so doing removed the dirt and gravel which the property owner had placed at the edge of the street to raise it above the established grade. There was no change of the established grade, and the court held that on these facts there could be no recovery, since "whatever damages were caused the abutting landowner accrued at the time the grade was established, and, if such damages were not then claimed, or, if claimed, and were paid, that would foreclose future actions and contentions growing therefrom."
What we have said in reference to the refusal of the peremptory instruction requested by the appellant disposes of its second assignment of error, which, in effect, presents the same point.
On the measure of damages, the court below instructed the jury that, "In estimating any such damages you should take into consideration the cost of restoring plaintiff's property to its former level or evenness with the street in front thereof, including the sidewalk in front of the property as shown by the evidence."
In the case of Murphy v. City of Meridian, 103 Miss. 110, 60 So. 48, it was held that the cost of raising plaintiff's residence and filling in the surface of the lot to accord with the grade of the street was a proper element of damages against a municipal corporation for changing the grade of the street; and, in the case at bar, the evidence is uncontradicted that the cost of filling and surfacing appellee's lot to conform to the change in the grade of the street will be at least three hundred eighty-five dollars. In the face of this evidence, the jury returned a verdict for only three hundred dollars, and, if it be conceded that it was error to instruct the jury that in estimating damages they might consider the cost of rebuilding the sidewalk, which we do not decide, the appellant was not prejudiced by such error.
None of the other assignments of error are of sufficient merit to warrant a reversal, and therefore the judgment of the court below will be affirmed.
Affirmed.