Blair v. City Of Charleston.(Dent

• Decision Date: 31 December 1896
• Citation: 43 W.Va. 62
• Parties: Blair v. City of Charleston.(Dent, Judge, concurring.) Suomitted
• Court: West Virginia Supreme Court

43 W.Va. 62

Blair

v.City of Charleston.(Dent, Judge, concurring.) Suomitted

Supreme Court of Appeals of West Virginia.

September 14, 1896

Decided December 31, 1896.

Municipal Coe porations Change of Grade Damages.

[f a street be opened and used upon the natural surface as a grade line, and it is recognized and treated by a city or town as a public street, and owners of lots upon it build with reference to such natural grade line, and it is changed, the city or town is liable to lot owners for damages consequential upon the change of grade, though no grade for the street was ever adopted by the municipality, under section 9, article 11 1 of the Constitution. Such natural grade thus became the established grade, (p. 04.)

MUNICIPAL pal Corporations Paper (trade Line Damages to Buildings.

Though such owner purchase after the municipality has established a paper grade line, but before actual physical grading conforming a street to that line, that will not preclude his recovery for damages to his lot; but he cannot recover for damages to buildings erected after the adoption of such paper grade. He must conform to such grade line, (p. 68.)

Damages Measure of Damages Change of Grade.

The measure of damages for injury to property from change of a street grade line is that sum which will make the owner whole; that is, the diminution of the market value from the change. If the market value is as much immediately after as immediately before the change, no damages can be recovered, (p. 69.)

Damaoes Estimating Damages Change of Grade.

In estimating damages to property from change of grade in a street, all damage and injury arising from the change causing a diminution in the value of the property are to be regarded, abating all special benefits to the property enhancing its value arising from the change of grade, but not general benefits shared by the property owner in common with others in the community at large. The question is one of damage, less special, but not less general, benefit, (p.70.)

Public Improvements Special Benefits to Property General Benefits to Property.

What are special benefits? If property is enhanced in value by reason of a public improvement, as distinguished from the general benefits to the whole community at large, it is speciailly benefited, and is to be assessed for the special benefits, notwithstanding every other piece of property upon or near the improvement may, to greater or less extent, be likewise specially benefitted. In other words, it is not only such benefits as are special, or limited to the particular property, thereby excluding the consideration of such benefits as are common to other property similarly si mated, but it is such benefits as that the particular property is by the improvement enhanced in value that is, specially benefited that are to be considered. If a piece of property is enhanced in value, its enhancement, or in other words, benefits to the property, cannot be said to be common to any other piece of property specially enhanced in value, and it is thus specially benefitted within itself, and irrespective of the benefit that may be conferred by the improvement upon other properties, (p. 70.)

6. Kyi dence Opinion Evidence Damages.

Opinions of witnesses as to the value of property before and after a change in a street's grade are admissible as evidence in actions against municipal corporations-for damage flowing from such change, (p.73.)

Error to Circuit Court, Kanawha county. Action by A. C. Blair against the city of Charleston. Judgment for defendant, and plaintiff 1 rings error.

Reversed.

W. S. Laidley, S. C. Burdett and A. C. Blair for plaintiff in error.

Harrisox B. Smith and Couoir, Flournoy A7 Price for defendant in error.

BraNNoN, Judge:

American C. Blair brought an action in the Circuit Court of Kanawha county against the city of Charleston to recover damages for injury to her lot consequent upon grading Morris street, the work placing an embankment of six feet height above the natural surface of her lot, leaving if and her house that much lower than the street, rendering it difficult of access, causing the lot to be wet, and the cellar to have water in'it. Verdict and judgment for city.

The law books tell us that, for grading streets, or changing grade, or other lawful works done by a city or town, no action lies for consequential injuries to adjoining property if the work be done skillfully and not negligently; but we must not be misled by the text of the older books in this matter, as they lay down the rule under constitutions saying that private property shall not be taken for public use without compensation, and there can be no liability where merely damage to adjoining property results from the work, but only when the property is taken, or flu1 injury is equivalent to its taking. Hut our Constitution of 1872 added the word "damaged" to the language of the former Constitution, so that the clause in section 9, article III, is "Private property shall not be taken or damaged for public use without just compensation." Under this change it is settled that, where once the grade has been actually established, and improvements on property have beam made with reference to that grade, and that grade is changed by raising or depressing it, and damage results to the property, the municipality must answer it, though the work was free from negligence. Johnson v. Parkerslnirg, 16 W. Ya. 102; Hutchinson v. Parkersburg, 25 W. Va. 226; Dill. Mun. Corp. § 996b; Beach, Mun. Corp. § 1.141. But it is said that this unquestioned rule does not determine the case in hand, for the reason that a system of grades for the city had been adopted long before the plaintiff owned this property, or began the construction of her house upon it, which system was of record in the proceedings of the council, which she knew, or might have known, before acquiring the lot or building. Morris street was a public street before the adoption of this ordinance or paper grade, and that grade (existed only on paper, or in contemplation, until after the plaintiff purchased, and was then physically established, working the injury sued for. Is it law that the first grading that is, physical grading can be done with impunity, no matter how much it hurt the adjoining landowner, and that the constitution gives compensation only when that is abandoned and another grade substituted? Let us view this question as to the land alone, separate from the house. There is the constitution, saying, without any such exception, that the citizen's property shall'not be damaged without paying him. But, in applying it, is there reason to make such exception? It may be said that, when the city acquired land for the street, whether by condemnation, purchase, or dedication, grading and consequent damages were contemplated and included, and thus the owner and his alienees are barred from damages. If acquired by condemnation, that would be a defense, as the compensation pays for the land actually taken and damages to the residue. If acquired by purchase or dedication, the seller or dedicator would contemplate, presumptively, a grade following the natural surface1; at any rate, not one grievously injuring the residue of his property. Suppose a man sells or gives land for a street. If the grade is at once made, he has no claim. It is opened and used for years on a surface grade, and them a grade is nu de gravely injuring him. Is there any reason why he should not be compensated? By the use of the street in its natural grade, the city has adopted it, and people may improve with reference to it; and, if if abandon that grade, so used, and substitute another, if ought to be regarded as an alteration of an established grade. ()therwise, landowners must wait indefinitely before improving; for, if they do not, they may be ruined by change of grade. The constitution surely does not mean this.

This question leas been up in states having similar provision in their constitution or laws to ours. In City of Bloomington v. Pollock, 141 III. 351 (31 N. E. 146), the court said that if was immaterial whether such grading was done under an ordinance establishing a grade in the first instance, or under an ordinance abandoning the grade, and the fact that the grade was fixed before the plaintiff's purchase was no defense to an action for damages. In Davis v. Railroad Co., 119 Mo. 180 (24-. S. W. 777), it is said by the court that the dedicates shoulel only be held to give implied consent to improvements such as would put the street in a condition safe for use on the natural surface, and the syllabus and opinion hold that an owner of a lot is entitled to consequential damages from the change of the natural surface to a legally established grade. Approved in Hickman v. City of Kansas, 120 Mo. 110 (25 S. VV. 225). In Borough of New Brighton v. United Presbyterian Church, 96 Pa. St. 331, it was contended that as the owner of ground had laid it out in lots, and the town had never fixed grade's, if was not liable for grading the first time, but it was held that a change from the natural grade was such a change as called for damages. The court said: "A change from the natural grade is a change of grade, just as much so as if changed from a grade previously made by the authorities. When the borough accepted the street, she took it as it then was, in width, line, and grade. The statute, in giving compensation, carrying out the constitution, is remedial. It gives damages where none before could be recovered. It should receive a liberal construction to effect its object." In Jones v. Borough of Brighton, 144 Pa. St. 638 (23 Atl. 252), if was held that a land' owner who lays out and dedicates a street to public use is not precluded from damages for a change of grade, at least where the change is not made for several years after the dedication, and is an act separate from the opening of the street, as it is in the case in hand. So in Puey v. City of Alleghany, ...