Newman v. City of Birmingham

• Decision Date: 14 April 1896
• Citation: 19 So. 902,109 Ala. 630
• Parties: NEWMAN v. MAYOR, ETC., OF BIRMINGHAM.
• Court: Alabama Supreme Court

19 So. 902

109 Ala. 630

NEWMAN v. MAYOR, ETC., OF BIRMINGHAM.

Supreme Court of Alabama

April 14, 1896

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Y. P. Newman against the mayor and aldermen of Birmingham for damages for change of grade. Judgment for defendants, and plaintiff appeals. Reversed.

Ben Carter, for appellant.

Gregg &amp Thornton, for appellees.

HEAD J.

The appellant, Newman, sued appellees for damages for the elevation of the grade of the street and sidewalk in front of his residence, and constructing them accordingly. Under the evidence, on the merits of his claim, he was entitled to recover; but the court ruled that there was no evidence tending to show that he had legally presented his demand to the mayor and aldermen, and procured action or refusal to act upon its allowance, before the institution of the suit, as required by the city charter (Acts 1890-91, pp. 114, 149, § 36), and, on request, gave the affirmative charge in favor of the defendant, whereupon the plaintiff took a nonsuit with bill of exceptions. The charter does not require application for the allowance of claims to be made in writing. The proper description of plaintiff's property is, "Lot 1 and part of lot 2 in block 35," fronting on Nineteenth street, and bounded on the south by Sixth alley, upon which stood a 10-room brick dwelling house, occupied as his residence, where he had resided for a number of years. He owned no other property in the city of Birmingham. After the damage accrued, plaintiff made out in writing and presented to the chairman of the street committee a claim in the following words: "Mayor and Aldermen of Birmingham, to Y. P. Newman, Dr. Said Y. P. Newman is the owner of lot 3 and part of lot 4 in block 35, according to the plan and survey of said city, on which lots is his residence, erected after the grade of said street had been fixed by the city," etc., going on to describe the acts of the defendant in afterwards raising the grade and injuring the property, and claiming $1,500 damages. It is thus seen that a mistake was made in the numbers of the lots. The evidence tends to show that this claim was put before the board of mayor and aldermen by the chairman of the street committee, and went into the custody of the clerk of that body, who was the proper custodian of such papers, and who produced it on the trial of this cause. The minutes of the regular board meeting, on September 21, 1892, which was shortly after this claim was preferred, shows as follows: "The miscellaneous and street committee, through Alderman Levi reported as follows, and the reports were...