Opinion
No. 4671.
Argued September 3, 1958.
Decided October 7, 1958.
1. The liability of a municipality under RSA 245:20 for damages caused by change in grade of a highway is limited to those damages resulting from changes made in the duly established grade and hence abutting property owners who acquired property after a grade was duly established are charged with notice thereof and are not entitled to damages resulting from changes made in accordance with such grade although effected subsequent to their acquisition.
2. Whether subsequent purchasers of abutting property who suffer at hardship resulting from a change in grade of a highway in accordance with a previously established grade should be compensated therefor is a matter of policy for the Legislature.
PETITIONS, by Marcel and Roberta L. Landry and Joseph and Wanda Stefens, under RSA 245:21, to recover damages resulting from a change in the grades of Bremer and Kimball Streets in the city of Manchester. The cases were tried together. The plaintiffs Landrys' land upon which they built their home is on the corner of the two streets. The plaintiffs Stefens' property adjoins Landrys' and is on Kimball Street. Kimball Street was accepted by the city on October 29, 1951. Bremer Street was accepted by the city on July 9, 1951.
On August 4, 1954, before the Landrys' house was built, they were given a grade by the city corresponding with the original curb grade on record at the city engineer's office and taken from a plan drawn pursuant to "level notes" made in 1928. When the Landrys purchased their property, the area occupied by the sidewalk had not been cut back to the original curb grade, but had been left in a sloping condition, and the actual change in grade made between June 4, 1955 and November 19, 1955, was to a lower grade in the area covered by the sidewalk than appears in the original curb grade.
It has been agreed that the damages with respect to the change in grade on Bremer Street are to be considered with regard to the existing grade as now established on the ground and not as established on paper; and, if at a future date an actual change on the ground is made, it will be the subject of another petition by the Landrys.
In their case, the reduction in grade left their property at the property line on both streets without support, and there exists along this line a vertical or nearly vertical embankment, out of which there is in places an outcropping of rock. Their house sets well back from the property line on both streets, so as to give ample opportunity to regrade at the property lines.
On July 1, 1954, before Stefens acquired their property, the builder was given a grade corresponding with the original curb grade on record at the city engineer's office. The area occupied by the sidewalk had not then been cut back to the original curb grade but had been left in a sloping condition. The actual change in grade between June 4, 1955 and November 19, 1955, was to a lower grade in the area covered by the sidewalk than was shown in the original curb grade, although Bremer Street has not yet been fully reduced to the proposed new curb grade. When the Stefens bought their home, the same situation existed inside the curb line on Bremer Street as on Kimball Street; that is, the sidewalk area had not been reduced to the original grade line. Their house sets well back from their property line, so as to give ample opportunity for re-grading on the property line.
The Court ruled in favor of all the plaintiffs, but found damages in the alternative in the event that its ruling should be reversed. In regard to Landry, it said: "It is found that the damage to the petitioner due to the change in grade is in the amount of Forty-seven Hundred Dollars ($4700.00).
"In the event that it should be later ruled that the damage should be assessed from the standpoint of a change in grade as it was determined on paper and not as it existed on the ground prior to October, 1955, then it is found that the damage is in the amount of Twenty-three Hundred Dollars ($2300.00)."
With reference to Stefens, it stated: "It is found that the petitioner's damage resulting from the change in grade is in the amount of Five Hundred Dollars ($500.00).
"In the event that it should be later ruled that the damage determined from the standpoint of change in grade as it was determined on paper and not as it existed on the ground prior to October, 1955, then it is found that the petitioner's damages are in the amount of One Hundred and Fifty Dollars ($150.00)."
The only exceptions transferred are by the defendant to the Court's failure to limit damages in each case to those caused by the change from the original curb grades as given to the plaintiffs before they purchased their property. Further facts appear in the opinion. Transferred by Grimes, J.
Danais Danais and Martin F. Loughlin (Mr. Loughlin orally), for the plaintiffs.
J. Francis Roche (by brief and orally), for the defendant.
The question before us is whether the plaintiffs are entitled to the damage done by all the grading, or, as the defendant claims, only to that caused by the change from the original curb grade, of which they had notice, to the new grade. The precise question does not appear to have been decided in this state, and decisions from other jurisdictions depending on different laws and policies are not persuasive.
It is not disputed that any liability of the municipality is wholly statutory. Waldron v. Berry, 51 N.H. 136. It had its origin in Laws 1848, c. 725, and remains unchanged in substance up to the present time. Keating v. Gilsum, 100 N.H. 84, 86; Perrotto v. Claremont, 101 N.H. 267, 269. The present statute (RSA 245:20) reads as follows: "If in repairing a highway by the authority the town the grade is raised or lowered . . . whereby damage is occasioned to any estate adjoining, the selectmen, on application in writing of the owner, shall . . . assess the damages . . . ." The plaintiffs claim the interpretation of the statute was settled in their favor by the case of Hinckley v. Franklin, 69 N.H. 614. There the court held that a landowner who built upon a lot abutting an ancient highway was entitled to damages for the subsequent construction of a sidewalk along the highway in front of her home. However, in that case it does not appear that any grade had ever been legally established or that the plaintiff had any notice of any contemplated change prior to acquiring the property. In these circumstances, the court properly reasoned that she could rely on the natural condition of the area existing between the road and her property when she bought it. We believe this case is clearly distinguishable from the situation before us where plaintiffs had notice of the duly established grade of the highways abutting their property before they purchased. Under our decisions, liability to the plaintiffs would only arise "by a change in grade in the highway from what was established in the original layout." (Emphasis supplied). Locke v. Laconia, 78 N.H. 79, 81. The city of Manchester concedes that it is liable to this extent.
However, the plaintiffs argue that since sewers, pavements, and hydrants had been put in, and also in view of the delay from 1951 to 1955 before any actual change on the ground was made, they had a right to rely on the maintenance of the status quo and should be compensated fully for damages caused by the actual establishment of the grade. There is force in their contention. However, the defendant points out that the record grade given the plaintiffs was notice to them of what the city had a right to do and what it might reasonably be expected to do when occasion arose. Cf. Perrotto v. Claremont, 101 N.H. 267. The defendant further asserts that as a practical matter it is not always possible, financially or otherwise, for a city to immediately do all the work on a road necessary to make it conform to the conditions of the original plan. Considering the situation as a whole in the light of the history of the statute and our previous construction of it in Locke v. Laconia, 78 N.H. 79, and Vaughn v. New Durham, 93 N.H. 81, 83, we believe the defendant's interpretation of RSA 245:20 is correct. It appears that the Legislature intended to limit damages to those caused by a change in the duly established grade of which purchasers are bound to take notice.
If it may be said that the situation here works a hardship on the plaintiffs, it is apparent that the issue involves balancing the interests of municipalities with individual rights. This matter, involving as it does consideration of many practical factors, is peculiarly within the legislative province. In such cases our court has consistently adhered to the well accepted view that it is for the Legislature to decide what course they wish to follow. Chronicle c. Pub. Co. v. Attorney General, 94 N.H. 148, 151. The order is
Judgment for the plaintiffs Landry for $2,300.
Judgment for the plaintiffs Stefens for $150.
All concurred.