City Council of Montgomery v. Townsend

• Decision Date: 11 May 1887
• Citation: 2 So. 155,80 Ala. 489
• Parties: CITY COUNCIL OF MONTGOMERY v. TOWNSEND.
• Court: Alabama Supreme Court

2 So. 155

80 Ala. 489

CITY COUNCIL OF MONTGOMERY v. TOWNSEND.

Supreme Court of Alabama

May 11, 1887

Appeal from city court of Montgomery.

Action for damages for injury caused by grading streets.

Syllabus by the Court.

Under former constitutional provisions, private property could not "be taken or applied for publis use" by municipal corporations without making just compensation; and this excluded a liability for consequential injuries where there was no taking or appropriation of the property itself. But the constitutional provision now of force (article 14, § 7) requires corporations invested with the power of taking private property for public use to "make just compensation for the property taken, injured, or destroyed by the construction or enlargement of the works, highways, or improvements;" and this new provision should be liberally construed in favor of the citizen.

Under this constitutional provision, while compensation is required for property taken, injured, or destroyed in the exercise of the right of eminent domain, the liability is limited to injuries caused "by the construction or enlargement of its works," etc.; and this neither restricts the liability to the original taking and opening of a street leaving the corporation at liberty to make subsequent changes by grading at its own will and caprice, nor does it impose a liaility for additional compensation on every subsequent change by grading or otherwise. Ordinary and reasonable changes and improvements due to the natural formation of the surface, or to a safe and convenient way, (including sidewalks,) are presumed to have been contemplated by the parties at the time of the original taking or dedication, and compensation cannot afterwards be claimed for injuries resulting therefrom; but a material change in the street (which includes the sidewalks also,) caused by a contingency which could not have been reasonably and fairly foreseen, or made merely because the corporate authorities may judge that the public convenience would be thereby increased, or the general appearance of the streets improved, if injury is thereby caused to the adjoining premises, is a new injury for which compensation may be claimed.

Whether the cutting down of the sidewalk adjacent to the plaintiff's lot to the level of the street, 15 feet below, was a construction of the highway within the meaning of the constitutional provision, was a question of fact for the decision of the jury; and the court erred in instructing them that the plaintiff was entitled to recover if his property was injured, without regard to the circumstances or character of the alteration.

If the plaintiff is entitled to recover compensation for the injury to his property, the measure of his damages is the difference in the market value of his lot before and after the sidewalk was cut down; and neither the falling of his brick wall, nor the apprehended undermining of his house by subsequent rains can be considered in estimating the damges.

This action was commenced December 10, 1885, by George W. Townsend against the city council of Montgomery, and claimed damages for cutting down the sidewalk adjacent to property owned by plaintiff, and thereby injuring said property. The cause was tried on March 20, 1886, and resulted in a verdict and judgment for the plaintiff. In addition to the facts stated in the opinion, the plaintiff offered evidence tending to show that, in consequence of the cutting down of the sidewalk, the rain had caused the earth up to his line to wash away, and finally to wash on the inside of his line, so as to cause the fall of a brick fence which plaintiff had erected on his own property, and that the washing from the rain threatened in time to undermine his houses. Defendant objected to any evidence of the washing away of the soil, and moved to exclude it from the jury, on the ground that as to defendant plaintiff was not entitled to lateral support, nor was such washing an element of damages in this case. The court overruled such objection, and the defendant excepted. The court, among other things, charged the jury; "If plaintiff's lot was injured by the cutting down of the sidewalk, then your verdict will be for the plaintiff,"-to which the defendant excepted. The following charge, among others, was asked by the defendant, and refused by the court, and an exception reserved to such refusal: "(1) The falling in of plaintiff's fences, or the threatened danger of buildings falling in, by reason of the cutting away of the sidewalks, are not elements of damage to be considered by the jury in arriving at their verdict in this case."

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

Watts & Son and W. L. Bragg, contra.

CLOPTON J.

The action is brought by appellee to recover damages for injury caused to his property by cutting down, under the direction of the city council of Montgomery, the adjacent sidewalk in front thereof. The street on which the lot of plaintiff is situate is within the corporate limits of the city, was dedicated to the public more than half a century ago, and has been continuously used and recognized as a public street. The level of the other part of the street is, and has been for many years, from 15 to 20 feet lower than the surface of the sidewalk, on which persons entered from the street by ascending a flight of steps. The sidewalk having been for several months in an unsafe condition, and dangerous to passers thereon, the city council, upon the examination and report of the city engineer, ordered it cut down to the level of the street. The authority of the city council to cut down the sidewalk, and the duty to do so, if necessary to put it in a safe condition, are not disputed. In the performance of the work, there was no excavation or cutting beyond the width of the street as dedicated and originally constructed, and it is not claimed that a want of reasonable care and skill is shown. The plaintiff does not controvert the non-liability of the corporation for consequential damages, in the absence of statutory or constitutional provisions imposing such liability. The contestation arises on the construction of the clause of the constitution requiring municipal corporations to make just compensation for property taken, injured, or destroyed for public use.

The preceding constitutions provided "that private property shall not be taken or applied for public use unless just compensation be made therefor, nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner." The clause of the present constitution now under consideration should be construed in the light of the provisions of its predecessors. Under such provisions, as construed by the courts, no liability for compensation accrued, unless there was an appropriation-a taking or in vasion-of the particular property. A municipal corporation was not liable to answer for consequential damages to the owner of property not taken, when there was no want of reasonable care and skill. Acts done by such corporations, under valid legislative authority, exercising the power of eminent domain, and not directly encroaching upon private property, did not constitute a taking, in the meaning of the constitution, and did not entitle the owner to a right of action, however much its value and use may have been impaired. The value of adjoining property might be seriously depreciated, and even destroyed, without right of compensation, because unaccompanied by actual, direct physical interference. In such case the protection of private property was sacrificed to the good or convenience of the community, and the individual loss or injury was regarded damnum absque injuria, to be borne by the citizen for the public benefit.

The practical operation of such general provisions having demonstrated that compensation only for property taken or applied was ineffectual to protect the citizen against oppression and injustice, by reason of the abuse of the privilege with which corporations had been invested, in disregard of the interests and rights of the individuals, the tendency is, in revising the several state constitutions, to abrogate by the organic law a rule which has no foundation in natural justice, and rests on no sound...