City of Lafayette v. Nagle
| Citation | 15 N.E. 1,113 Ind. 425 |
| Decision Date | 18 January 1888 |
| Docket Number | 12,961 |
| Parties | The City of Lafayette v. Nagle |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled February 28, 1888.
From the Clinton Circuit Court.
Judgment affirmed.
W. C L. Taylor, for appellant.
J Claybaugh, for appellee.
The material facts stated by the appellee as a cause of action are these: In 1875 she became the owner of a lot in the city of Lafayette, along the south line of which is a public alley extending from Earl avenue to Thompson street. On the 15th day of December, 1879, the grade of the alley was established. On the 1st of April, 1881, the grade was changed, and the surface of the alley lowered five feet at its intersection with Earl avenue. This change in the grade destroyed all means of access to the rear of appellee's lot by ordinary vehicles, travel and traffic.
Prior to the enactment of our statute making municipal corporations liable for consequential damages resulting from a change of grade, no action would lie; but the rule has been entirely changed, and a right of action is vested by the statute in abutting lot-owners who sustain injury from a change in the established grade of a street or alley. City of Kokomo v. Mahan, 100 Ind. 242; City of Logansport v. Pollard, 50 Ind. 151.
To constitute a cause of action there must be a legal injury and resulting damages. City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821; City of Kokomo v. Mahan, supra. An illegal change of grade may be regarded as the injury, but without resulting damages no action will lie.
The injury must be special, and not merely such as the public may suffer, for a private person can not recover damages for the unlawful obstruction or destruction of a highway unless he has suffered special damages. Indiana, etc., R. W. Co. v. Eberle, 110 Ind. 542 (59 Am. Rep. 225, 11 N.E. 467); Sohn v. Cambern, 106 Ind. 302, 6 N.E. 813; Cummins v. City of Seymour, 79 Ind. 491 (41 Am. Rep. 618).
Where, however, access to a lot is cut off, the abutter loses a valuable right, and does suffer injury peculiar to himself, and different both in kind and in degree from that which the public sustains. The right of the abutter is property in the strictest sense, and from him this property can not be taken by the sovereign power without just compensation. Haynes v. Thomas, 7 Ind. 38; Common Council v. Croas, 7 Ind. 9; Butterworth v. Bartlett, 50 Ind. 537; State v. Berdetta, 73 Ind. 185 (38 Am. Rep. 117); City of Indianapolis v. Kingsbury, 101 Ind. 200, 211 (51 Am. R. 749); Indiana, etc., R. W. Co. v. Eberle, supra.
It can not be unknown to courts that streets and alleys add value to lots in a city, for not only is this a fact commonly known, but it is also recognized in many judicial decisions. We, therefore, assume as matter of law, on the facts stated, that the appellee sustained a special injury resulting in damages to her.
It does not require that a witness shall be an expert to entitle his opinion to go to the jury upon a question of the value of property. If it appears that he has an acquaintance with the value of property in the vicinity, his opinion is competent, but its weight will, in a great measure, depend upon the knowledge he is shown to possess. An opinion on such a question may be of little weight, but nevertheless be competent. The rule is thus stated by Mr. Lawson: Expert and Opinion Evidence, 435; Yost v. Conroy, 92 Ind. 464 (47 Am. R. 156).
It was competent to take the opinion of witnesses as to the value of the appellee's property, as it was before the change from the previously established grade and as it was after the change was made. Yost v. Conroy, supra, and authorities cited; Louisville, etc., R. W. Co. v. Peck, 99 Ind. 68; Terre Haute, etc., R. R. Co. v. Crawford, 100 Ind. 550; Carthage T. P. Co. v. Andrews, 102 Ind. 138 (52 Am. R. 653, 1 N.E. 364); Heick v. Voight, 110 Ind. 279, 11 N.E. 306.
There was no error in permitting witnesses to state what experience they had in using alleys, nor was there error in permitting them to state what use could be made of the alley after the grade was changed.
The court was right in instructing the jury that the appellee was entitled to recover if the grade, after having been once established, was changed. The statute authorizes a change of grade only in cases where compensation is made, and where the municipal authorities disobey this statute, the corporation must respond in damages. There is nothing in Mattingly v. City of Plymouth, 100 Ind. 545, that conflicts with this ruling. We here affirm what was there held, that no action will lie unless the grade has once been established by the corporate authorities.
The city, having disobeyed the law, must suffer the penalty of its disobedience by paying the lot-owner compensation for the injury proximately resulting from its illegal act. The statute does not shield the city except in cases where its directions have been obeyed. If a municipal corporation elects to make the change without tendering or paying compensation as the law requires, a right of action accrues in favor of the abutter as soon as the wrong which causes the damages is complete. It is the appellant, and not the appellee, that is mistaken as to the theory on which the complaint is constructed. The theory of the complaint is, that the appellant has changed a previously established grade in violation of the statute, and thus inflicted an injury upon the appellee by a wrongful act.
As applied to the evidence in the case and considered in connection with the other instructions, the seventh instruction given by the court is not erroneous. Counsel, in criticizing this instruction, say: "Many cases arise in which a permanent obstruction in a highway may become an absolute necessity; under such circumstances no liability would be against the city." Granting, but by no means deciding, that the counsel's proposition is correct, it does not lead to the asserted conclusion. The evidence in this case does not tend to show any absolute necessity for permanently obstructing the alley; what it does show is, that the appellant wrongfully changed the grade of the alley to the special injury of the appellee. Nor is the appellant's proposition at all relevant to the point in dispute, for here the appellee claims damages for a wrongful change of grade, not for an obstruction of the alley.
We agree with appellant's counsel, that without evidence of special injury to her property the appellee could not recover, but we can not agree that the jury was not properly instructed on this point. In several instructions given at appellant's request, the jury were informed that there could be no recovery unless the appellee proved that the value of her property was decreased by the change in the grade of the alley.
It is not necessary that a lot-owner injured by a change of grade should have made improvements with reference to the grade as established in order to entitle him to recover. If the value of the lot is materially impaired, a cause of action accrues. If a street is raised twenty feet above a vacant lot, or lowered forty feet below it, and its value thereby depreciated, the owner is entitled to damages. The question in such cases as this is: What is the effect of the unauthorized change of grade upon the value of the abutter's property? The fact that improvements have been made may, perhaps, augment the damages, but the fact that none have been made can not destroy the cause of action.
Where it becomes necessary to construct a sewer in a public street or alley, it may be done, unless to do it requires a change of an established grade. A change of grade, however, can not be made for any purpose without compensation to the abutter injured by the change. Streets and highways may be used for sewerage, but if their construction requires a change of grade compensation must be made to the property-owner specially injured.
The change of the grade of the alley was an act of a permanent nature, and was done by a municipal corporation under claim and color of right. It was not a mere fugitive trespass, but it was a wrongful act, permanent and enduring in its character. The case, therefore, belongs to the class where only one action can be maintained. All the damages, past and prospective, must be recovered, for successive actions can not be prosecuted.
There is a plain distinction between an unlawful act constituting a nuisance and an act wrongful because the...
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