Chase v. City of Portland

• Decision Date: 02 April 1894
• Citation: 86 Me. 367,29 A. 1104
• Parties: CHASE et al. v. CITY OF PORTLAND.
• Court: Maine Supreme Court

29 A. 1104

86 Me. 367

CHASE et al.

v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

April 2, 1894.

Exceptions from supreme judicial court Cumberland county.

Complaint by Daniel Chase and others against the city of Portland for the determination of damages to plaintiffs' premises caused by the change of grade of a street on which such premises abut There was a verdict for defendant, and plaintiffs bring exceptions and move for a new trial. Exceptions and motion overruled.

C. F. Libby and Locke & Locke, for plaintiffs. Seth L. Larrabee, City Sol., for defendant.

WHITEHOUSE, J. The complainants represent that they are aggrieved by the refusal of the municipal officers of the city of Portland to award them damages for an injury alleged to have been sustained by reason of the raising of Commercial street on its southerly side adjoining their property, located at the head of Long wharf, and ask to have the damages determined by this court.

The statute under which this complaint is preferred (St. 1887, c. 97) provides that, "when a way or street is raised or lowered by a surveyor or person authorized, to the injury of an owner of land adjoining, he may apply in writing to the municipal officers, and they shall view such way or street and assess the damages, if any have been occasioned thereby; and any person aggrieved by said assessment may have them determined on complaint to the supreme judicial court" etc. The complaint has been heard before a jury, who found that the street was raised as alleged, but that the "petitioners sustained no damage thereby." The case now comes to the law court on motion and exceptions.

The street in question appears to have been laid out across tide-water flats in 1853, and to have been constructed with a sea wall along the water front The complainants' large wooden building (150 feet long, and 50 feet wide) was constructed on piles over tide waters facing on Commercial street. At the time it was erected, the ground floor was 15 inches above the grade of the street. In 1861, a sidewalk was laid alongside the old platform in front of the store, but no other structural change appears to have been made on the southerly side of the street opposite this store until the change complained of in 1891; but the level of the northerly side of the street seems to have been raised at different points from time to time, and the railroad track in front of the complainants' premises was raised so that the planking between the rails became nearly 2 feet higher than in 1853. The southerly side of the street thus gradually sloped from the rails to the sidewalk. The result was that a large number of the buildings on that side of the street had been raised from 16 inches to 3 feet; but it is in testimony from the complainants that they suffered no inconvenience and sustained no injury from the grade of the street prior to the change in question. In 1891, the street commissioner was duly instructed to raise the retaining wall on the southerly side opposite the building of the complainants, and to fill in the street to grade. This work was executed as directed, leaving the complainants' store 17 inches below the new grade of the street it is not in conttorersy that in that relative position, the store was practically untenantable, and it is admitted that the sum of $1,788.53 was necessarily expended by them in raising it to the level of the street and properly adjusting it to the new conditions. It is also admitted that whatever was done on the street at that time by the street commissioner was duly authorized by the city of Portland. See Mitchell v. Bridgewater, 10 Cush. 411.

1. The Exceptions. It was contended in behalf of the complainants that the rentable value of the store was no greater after it was raised than before, and hence that the damage occasioned by the alleged injury to their premises would be fairly measured by the amount claimed to have been judiciously expended in securing it ana adjusting it to the new grade. On the part of the city, it was contended that the complainants were benefited, rather than injured, by the change of grade; that by reason of the low level and depressed condition of the street at that point, before the change in 1891, the water frequently stood to the depth of eight or ten inches in front of the complainants" store, making the approach to it inconvenient and difficult; and that the special benefits accruing to this property from the improvement in the street exceeded in value the amount expended in raising the building.

The presiding judge instructed the jury, inter alia, as follows:

"Now, the damage to a piece of property in this class of cases must be substantially this: How much did it reduce its market value? * * * To answer that question intelligently, you will consider what condition the land was in. The word 'land,' as used, includes the permanent building upon it. What condition was the property in, as a whole, and what condition was the street in? Then, if they went on and raised it in the manner described, * * * did it increase or depreciate the value of that land as a whole,—the market value of it? * * * A great many elements go to make up that question, and to make up the answer to that question. * * * If, on the whole, the increased value of the property by means of raising of the street was equal to the expense thereby incurred, which he was necessarily obliged to incur in order to raise the building and put it in a proper condition, then he would not be 'damaged,' within the meaning of the law. But if the expense which he was thereby obliged to incur was more than the increased value of the land, then this fact should be taken into account This is equivalent to saying he was injured. * * * There is one benefit * * * which should not be taken into account; that is, this side of Commercial street as a whole was thereby improved,—benefited for everybody that had occasion to use it Where there was before a mudhole on one side, it came up, and present ed a handsome level street throughout * * * Such benefit as the petitioners may have derived in common with all others living on the street or having occasion to use it such benefit is not to be taken into account or deducted from the injury to the land. * * * But what direct, special damage was occasioned to this property you may take into account, and give them full compensation, if they have suffered.

"Now, in behalf of the city it is said that, although it cost $1,500 or $2,000, and even more, to raise this building, and put it in a safe condition, still, the property, being upon a level street, instead of being placed in a mudhole, is worth more than it was before; that it has increased the value of the property more than it has cost him; that he has been benefited, rather than injured, even to the extent of $4,000 or $5,000. * * * A witness says 'that, if they didn't raise that building, then, of course, it diminished its value.' You may as well say that a horse is not worth anything unless a man had a saddle to go with it, or a carriage and harness. * * * A lot without a house on it is not valueless because you can't use it until you do put a house on it."

It is contended by the learned counsel for the complainants that the decrease in the market value of the property injured cannot be a correct measure of the damages sustained, but that the true test to be applied in a case of this kind is the cost of restoring the premises to a proper condition in relation to the street, and of obviating the various elements of damage caused by raising the grade, provided such repairs be reasonably and judiciously made; and if he is too poor to repair the injury, or does not see fit to do so, his right to damages still subsists.

Instructions to the jury should be carefully adapted and restricted to the facts before them. It was in evidence here that this building had been elevated to conform...