City Council of Montgomery v. Maddox

• Decision Date: 07 May 1890
• Citation: 89 Ala. 181,7 So. 433
• Parties: CITY COUNCIL OF MONTGOMERY v. MADDOX.
• Court: Alabama Supreme Court

7 So. 433

89 Ala. 181

CITY COUNCIL OF MONTGOMERY v. MADDOX.

Supreme Court of Alabama

May 7, 1890

Appeal from city court of Montgomery; T. M. ARRINGTON, Judge.

Jones & Falkner and W. S. Thorington, for appellant.

T H. Watts, Sr., for appellee.

SOMERVILLE J.

The action is one entirely analogous to that presented in City Council of Montgomery v. Townsend, 80 Ala. 489 2 South. Rep. 155; 84 Ala. 478, 4 South. Rep. 780,-which was before this court twice on appeal. The plaintiff in the suit claims damages for the injury done his property on Herron street, in the city of Montgomery, by reason of the grading and cutting down of the street and sidewalk contiguous to the property, which is alleged and proved to have been done by authority of the city council. The sidewalk was from 10 to 15 feet above the altitude of the street, and was cut down to the level of the street grade, but no excavation was made beyond the width of the highway as originally dedicated, more than 50 years ago. The defendant justified under its alleged power to grade the street and sidewalks, and its duty to keep them in repair, so as to make them safe for the passage of pedestrians and vehicles. It can scarcely be denied that the plaintiff's property has been injured or damaged by the change of the street grade, rendering it less accessible less desirable as a place of residence, and appreciably diminishing its market value. The verdict of the jury in favor of the plaintiff, for something over the sum of $630, is conclusive on this point.

The only inquiry, as it seems to me, is whether the defendant municipality is to bear this loss; or, if not, to what extent it is to be relieved of the burden, necessarily at the expense of the plaintiff. This question has been ably considered in the opinions of Chief Justice STONE and of Mr. Justice CLOPTON in the Case of Townsend, to which I have above alluded. With much in those opinions I fully agree, but, upon a more mature consideration of the authorities, I feel impelled to hold a modified view as to one or more of the conclusions there announced.

We are all agreed as to the old or common-law rule which prevailed in this state prior to the constitution of 1875, as to the liability of municipalities for grading and improving streets. Where they were invested with the authority to make such improvements, and did not exceed such authority, and there was no actual taking of the plaintiff's property in the exercise of the right of eminent domain, cities and towns were not liable for what are termed "consequential" damages, unless there was some negligence or want of skill in the execution of the work. Or, as stated by Mr. Freeman in his note to the case of Perry v. City of Worcester, 66 Amer. Dec. 437: "Where an act is done by a city under authority of valid statute or charter, it is not liable for consequential damages to persons or property necessarily incidental to the work performed, unless the action is given by the statute, even when the same act, if done without legislative authority, would have been actionable. But the act must be performed with reasonable care, and without want of reasonable skill." This view is announced in Case of Townsend, 80 Ala. 491, 2 South. Rep. 155, and is well supported by the authorities. The reason is that the owner of the property must ordinarily be presumed to hold it subject to the paramount public right, and to the contingency of a diminution in value resulting from the exercise of the municipal right to improve the streets for the public good, "in any manner which shall not deprive him of property, nor disturb him in the lawful use of anything which should of right be his." As said by ROBERTSON, C.J., (Keasy v. City of Louisville, 4 Dana, 154:) "It would have been damnum absque injuria,-loss, not injury; inconvenience, not wrong,-to which every citizen must submit, and to something like which every citizen does submit, for the public good." The state held its highways in trust for the public use. It had the right to improve them, or to authorize their improvement through the agency of its municipalities, although such action for the public benefit might result in injury to the private property of the citizen. The prerogative of the state was to exempt itself from such for damages consequential to the injury inflicted, and it was conceived proper, in the light of former experiences, that the same prerogative should be extended to its municipal agents employed to accomplish the same end. Transportation Co. v. Chicago, 99 U.S. 635.

This was a severe rule, full of hardships and injustice,-that an act done under lawful authority, if done in a proper manner, would not subject the party doing it to an action, whatever the consequences might be, in the absence of any actual taking of the property of the injured party. It opened wide the door for the most monstrous invasions of the rights of the private property of the citizen under the authority conferred by legislature on corporations, especially municipal and railroad. The jurisprudence of every state in the Union furnishes unrighteous illustrations of private property injured by the construction of railroads, and damaged by municipal improvements made at the expense of the citizen for the public good. Radcliff v. Mayor, etc., 4 N. Y. 195; Murphy v. Chicago, 29 Ill. 279; Nevins v. City of Peoria, 41 Ill. 502; Mayor, etc., v. Omberg, 28 Ga. 46; Mills, Em. Dom. (2d Ed.) §§ 204, 204 a; 2 Beach, Ry. Law, § 825; Railroad Co. v. Marchant, 119 Pa. St. 541, 13 A. 690; Transportation Co. v. Chicago, 99 U.S. 635.

There are two notable cases in the state of Pennsylvania which well illustrate the common-law rule above announced. As it seems to be conceded that the hardship of these cases-the want of a remedy for

an admitted mischief-led to the incorporation in the Pennsylvania constitution of 1874 of a provision of which section 7, art. 14, of our present constitution, (of 1875,) hereafter quoted, is an exact copy, I deem a particular reference to the decisions to be appropriate. In O'Connor v. Pittsburgh, 18 Pa. St. 187, (decided in 1851,) the cutting down by the city of Pittsburgh of the grade of a street rendered entirely useless a church building, which was shown to have cost about $25,000, and practically destroyed its value as a place of worship. "The loss to the congregation," said the court, "is a total one, while the gain to holders of property in the neighborhood is immense. The legislature that incorporated the city never dreamt that it was laying the foundation of such injustice; but, as the charter stands, it is unavoidable." It was stated by Chief Justice GIBSON, that the case was reargued "in order to discover, if possible, some way to relieve the plaintiff consistently with law; but," he added, "I grieve to say we have discovered none." So in Navigation Co. v. Coons, 6 Watts & S. 101, where the defendant corporation constructed a dam in the Monongahela river under legislative license, which caused back-water for several miles in a tributary of that river and resulted in great damage to the plaintiff's mill, the court held the injury to be remediless because no portion of the plaintiff's property had been taken by the offending corporation, the damage being merely consequential.

The unjust distinction thus obtained at common law that one who was injured by the rightful exercise of eminent domain could not recover damages for such injury, however great, unless some portion of his property was actually taken. If the least portion of his property was taken, however, the owner could not only recover compensation for it, but also damages accruing to the remainder of such property. Where no property was "taken," the injury inflicted was held to be consequential damages, and compensation was disallowed, unless the offending corporation or party was made liable by force of its charter or some statute. "This was the mischief," says Chief Justice PAXSON in Railroad Co. v. Marchant, 119 Pa. St. 541, 13 A. 690, alluding to the two cases above cited,-"this was the mischief which the constitutional convention had before it when section 8 of article 16 [identical, as we have said, with section 7, art. 14, of the Alabama constitution, now in force] was adopted by that body, and it was the evil the people were smarting under when they ratified the work of the convention at the polls. The constitution, since 1790, had declared that the property of the citizen should not be taken or applied to public use without just compensation. The constitution of 1874 went further, and declared not only that it shall not be taken, but also that it shall not be injured or destroyed, by corporations in the construction or enlargement of their works, without making compensation, etc. There is no ambiguity in this language," continues the Pennsylvania court. "We have applied it several times to cases arising under it, without the least difficulty."

Keeping in mind the cardinal rule of construction, which has regard for the old law as it stood at the making of the act, the mischief for which that law did not provide, and the remedy provided to cure this mischief, it becomes the duty of the court so to construe the clause of the constitution under consideration as to suppress the mischief and advance the remedy. "Municipal and other corporations, "says the constitution, "and individuals, invested with the privilege of taking private property for public use, shall make just compensation for the property taken, injured, or destroyed, by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction." Const. art. 14, § 7.

I do not discover precisely this same language in the...