O'Grady v. City of Montpelier

• Decision Date: 27 March 1978
• Docket Number: No. 223,D,223
• Citation: 573 F.2d 747
• Parties: Robert and Angeles O'GRADY, Appellants, v. CITY OF MONTPELIER, Montpelier City Department of Public Works, Stephen A. Gray, Director of Public Works, Richard W. Curtis, Mayor, City of Montpelier, Charles B. Nichols, Jr., Norman J. Coates, Gordon R. Wilkinson, Carroll W. Ayer, Jr., Donald C. Rowan, H. John Lackey, Jr., Individually and in their capacities as aldermen for the City of Montpelier during the year 1972, Roland J. Dubay, City Manager for the City of Montpelier, and Munson Earth Moving Corporation, Appellees. ocket 77-7302.
• Court: U.S. Court of Appeals — Second Circuit

Page 747

573 F.2d 747

Robert and Angeles O'GRADY, Appellants, v. CITY OF MONTPELIER, Montpelier City Department of Public

Works, Stephen A. Gray, Director of Public Works, Richard W.

Curtis, Mayor, City of Montpelier, Charles B. Nichols, Jr.,

Norman J. Coates, Gordon R. Wilkinson, Carroll W. Ayer, Jr.,

Donald C. Rowan, H. John Lackey, Jr., Individually and in

their capacities as aldermen for the City of Montpelier

during the year 1972, Roland J. Dubay, City Manager for the

City of Montpelier, and Munson Earth Moving Corporation, Appellees.

No. 223, Docket 77-7302.

United States Court of Appeals, Second Circuit.

Argued Oct. 31, 1977.

Decided March 27, 1978.

John A. Burgess, Burgess & Normand, Ltd., Montpelier, Vt. (William J. Ryan, Ryan & Ryan, Montpelier, Vt., of counsel), for appellants.

W. Edson McKee, McKee, Giuliani & Cleveland, Montpelier, Vt., for appellees City of Montpelier, Montpelier City Department of Public Works, Gray, Curtis, Nichols, Coates, Wilkinson, Ayer, Rowan, Lackey, and Dubay.

Richard H. Gregory, III, Dinse, Allen & Erdmann, Burlington, Vt., for appellee Munson.

Before FEINBERG, OAKES and GURFEIN, Circuit Judges.

OAKES, Circuit Judge:

Appellants, garage owners in Montpelier, Vermont, appeal the dismissal of their two- pronged complaint seeking damages in excess of $10,000 against the City of Montpelier, ¹ certain City officials, ² and a local contractor, Munson Earth Moving Corporation (Munson). The complaint first alleges that appellants were denied due process of law when the City raised the level of the grade of a street abutting appellants' property by more than three feet, ³ pursuant to a Neighborhood Improvement Project, without affording them notice and an opportunity to be heard, contrary to the City Charter. ⁴ It secondly asserts a deprivation "of the use and enjoyment" of appellants' premises from the alteration of the grade which caused water to drain into the garages rendering two units unavailable for rental purposes and causing structural damage to all units. Complaint for Appellants at 5. Suit is brought against the City directly under the Fourteenth Amendment on the jurisdictional base of 28 U.S.C. § 1331(a) ⁵ and against the other defendants under the Civil Rights Act, 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3).

The United States District Court for the District of Vermont, Albert W. Coffrin, Judge, sua sponte dismissed the complaint for lack of jurisdiction under both § 1343(3) and § 1331(a) and for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). ⁶ Judge Coffrin reasoned that the State's action did not amount to a taking of property under the Fourteenth Amendment; thus the facts presented by appellants did not reveal a deprivation of any constitutionally protected right. ⁷ We reverse.

Appellants present two possible constitutional grounds for invoking federal jurisdiction: a "taking of their property without compensation, ⁸ and a denial of due process of law by the City's failure to notify and afford them an opportunity to be heard before the City Council on the awarding of damages, prior to the City's initiating construction. If the facts do not reveal either of these constitutional deprivations, plaintiffs have failed to state a federal claim upon which relief can be granted, and dismissal is proper. ⁹

Two actions of the State arguably constitute a taking. The first is the construction itself. The second is the resulting water drainage and damage to appellants' premises. As to the first, it is fairly well established that changing the level of a grade of a road does not constitute a taking. Menut & Parks Co. v. Village of St. Johnsbury, 114 Vt. 41, 45, 39 A.2d 342, 344 (1944); Hoyt v. Village of North Troy, 93 Vt. 8, 9, 105 A. 33, 34 (1918); 2A J. Sackman, P. Nichols' The Law of Eminent Domain § 6.4441(1) (rev. 3d ed. 1976). See also United States v. Willow River Power Co.,324 U.S. 499, 510-11, 65 S.Ct. 761, 89 L.Ed. 1101 (1945) ("It has been held in nearly every state in the Union that 'there can be no recovery for damages to abutting property resulting from a mere change of grade in the street in front of it, there being no physical injury to the property itself, and the change being authorized by law.' ") (footnote omitted); 26 Am.Jur.2d Eminent Domain §§ 228-29 (1966). In other words, an abutting landowner does not have a property interest in the existing grade of a street. ¹⁰ While a state statute or constitution may create the right to compensation when the grade of a road is altered, ¹¹ the protection thereby afforded exceeds that which is available under the Fifth and Fourteenth Amendments. ¹²

Whether the damage to appellants' garages allegedly caused by the water drainage was sufficient to constitute a taking is, however, unclear on the basis of the briefs and affidavits submitted below. While we must read these papers in the light most favorable to appellants, Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) (per curiam); 2A Moore's Federal Practice P 12.08, at 2266-67 (2d ed. 1975); see Cruz v. Beto, 405 U.S. 319, 321-22, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam), in this case they offer insufficient facts from which to draw any firm conclusions. They do not reveal where the water comes from, whether the drainage is without cessation, whether the two units are continuously unusable, the extent of the structural damage, if any, or the amount of rental income lost. Appellants may have a right to compensation under Vermont law, ¹³ but this does not necessarily mean that they have been deprived of their property in the sense contemplated by the Fifth and Fourteenth Amendments. Obviously not every interference with a property right gives rise to a constitutional cause of action, as the land use regulation cases amply demonstrate. E. g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 592-96, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387-97, 47 S.Ct. 114, 71 L.Ed. 303 (1926). See generally 2 N. Williams, American Planning Law 271-78, 646-47 (1974); 3 id. at 91-96 (1975); 5 id. at 341-43; F. Bosselman, D. Callies & J. Banta, The Taking Issue 139-235 (1973); Van Alstyne, Taking or Damaging by Police Power: The Search for Inverse Condemnation Criteria, 44 S.Cal.L.Rev. 1 (1970); Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1165-1201 (1967); Sax, Takings and the Police Power, 74 Yale L.J. 36, 36-67 (1964); Comment, Regulation of Land Use: From Magna Carta to A Just Formulation, 23 U.C.L.A. L.Rev. 904, 904-24 (1976). Cf. Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977) ("There is, of course, a de minimis level of imposition (on liberty interests protected by the due process clause) with which the Constitution is not concerned.") Paul v. Davis, 424 U.S. 693, 699-701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (violation of state tort law does not necessarily engender a deprivation of any right protected by the Constitution); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (rights actionable under 42 U.S.C. § 1983 are not coterminous with state tort actions), cert. denied sub nom. Employee-Officer John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). Since we have an insufficient record here on which to act, in the interests of prudence we decline to determine the constitutional question sought to be presented. See Mr. Justice Brandeis' concurring opinion in Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936).

We have previously suggested, notes 11-13 & accompanying text supra, that Vermont affords plaintiffs a remedy for whatever damage has occurred, although this might be dependent upon the kind of water involved, the reason that it has drained onto plaintiffs' land and the extent, if any, of the damage caused. It has been suggested in a somewhat analogous context by then Circuit Judge Stevens that if such a remedy does exist and has not been resorted to, no constitutional deprivation can be claimed. See Bonner v. Coughlin, 517 F.2d 1311, 1319-20 (7th Cir. 1975). Although a subsequently convened en banc court in that case rejected this approach in the context of the prisoner's suit before it, 545 F.2d 565 (7th Cir. 1976) (en banc), this theory would seem to apply with greater force to the more traditional type of "taking" of property by the State that is alleged here. The relevant constitutional command, after all, is that a state must "pay just compensation for property taken for public use." Malloy v. Hogan, 378 U.S. 1, 4, 84 S.Ct. 1489, 1491, 12 L.Ed.2d 653 (1964) (emphasis added). Without ruling upon these interesting issues, we suggest that on remand the district judge determine, after ascertaining the precise nature of plaintiffs' injuries, whether plaintiffs have a clear remedy under Vermont law.

Because of the sparsity of the factual record thus far produced, the district court erred in dismissing the action at this stage. We reverse the dismissal and remand to the district court. ¹⁴ In so holding, we do not intend to preclude Judge Coffrin from proceeding, with additional affidavits, by way of summary judgment pursuant to Federal Rules of Civil Procedure 12(b) and 56.

Reversed and remanded.

1 The City acted through its Department of Public Works, also named as a defendant.

2 The individual defendants include the Mayor, the City Manager, the Director of Public Works and the City's Aldermen.

3 Appellees dispute this allegation, contending that the alteration was less than three feet.

4 The City Charter in effect in 1972 when the construction was undertaken provided in pertinent part:

Section 1. The city council upon notice to persons affected may lay out, of any convenient width, alter, maintain, establish and change the grade of and discontinue any street, road,...