City of Cincinnati v. Whetstone

• Citation: 47 Ohio St. 196,24 N.E. 409
• Parties: CITY OF CINCINNATI v. WHETSTONE et al.
• Decision Date: 25 March 1890
• Court: United States State Supreme Court of Ohio

24 N.E. 409

47 Ohio St. 196

CITY OF CINCINNATI v. WHETSTONE et al.

Supreme Court of Ohio.

March 25, 1890

Error to circuit court, Hamilton county.

The original action was commenced in the court of common pleas of Hamilton county by the defendants in error, Marion G Whetstone and John L. Whetstone, as trustees under the will of Richard A. Whetstone, deceased, against the city of Cincinnati. The plaintiffs in their petition alleged that Richard A. Whetstone was in his life-time seised of a perpetual leasehold estate in a tract of land on the north side of Eighth street, in the city of Cincinnati, with a frontage of 104 feet on that street, and extending back, with the same width in rear as in front, to a depth of 56 feet and that he was also seised in fee-simple of a lot of land immediately adjoining the leasehold estate upon the west, and being 13 1/2 feet in front upon Eighth street, and running back, the same width as in front, 56 feet. Richard A Whetstone, by his last will and testament, it is alleged devised the said premises to the plaintiffs, to be held by the same tenure by which he had held the premises, but in trust for divers purposes in the will specified and set forth. The plaintiffs further alleged that in the years 1872 and 1873, and for many years previously, Eighth street in front of said premises was a public highway of the city of Cincinnati, in the charge and lawful custody of the municipal authorities of said city, the grade of which had long before that time been established, and said street had been graded, and paved to said grade, and in use for many years as such highway. The plaintiffs further alleged that before the year 1872 there had been erected, and there still continued to be, on the premises, valuable and permanent improvements, consisting of a brick warehouse and paint-shop, frame stable, and brick cooper-shop, all connected with and adjoining a linseed oil mill, and used in the business of making and selling linseed oil, which was carried on in and upon said premises by tenants of the plaintiffs, who paid rental for the use thereof, and which improvements were erected with reference to said grade, and entirely conformable thereto. And it was further averred by the plaintiffs that in the years 1872 and 1873, disregarding the rights of the plaintiffs, and against their protest and written notice and claim, the city of Cincinnati changed said established grade, and reconstructed said street at a grade much higher than before, and so as to fill and elevate said street in front of said premises, at the west end thereof, about seven feet, and at the east end thereof about ten feet, by piling large quantities of earth thereon, and was proceeding to fill the same directly against the said buildings of the plaintiffs, and would have crushed and destroyed the same, to the loss of the plaintiffs of many thousand dollars, but for the active efforts and expenditures of the plaintiffs for their own protection, who, between March 15, 1873, and May 31, 1873, expended, in the construction of necessary retaining walls to save said buildings from overthrow and destruction, the sum of $1,008.22. The plaintiffs further alleged that, by the reconstruction and change of grade of said street, great damage had been done to their buildings; that the first story, which was before upon the level of, and conveniently accessible to, the said street, had been converted into a basement or cellar largely below the level of the street, and the cellar into a subcellar, and thereby they had been subjected to a heavy loss, viz., in the sum of many thousand dollars, in the deterioration and lessening of the value of the said buildings and improvements, in addition to said money expenditure, in all to the damage of the plaintiffs in the sum of $10,000, for which, with interest from August 1, 1873, they asked judgment. The answer to the petition was a general denial.

The court, in its general charge to the jury, among other instructions, gave the following: ‘ Your inquiry, according to the damages in this case, is to relate to the date of the change of grade, in 1872 and 1873. If the plaintiffs sustained any injury by reason of the change of grade, it occurred at that time; and, in determining the measure of damages, by the difference between the value of the improvements before the change of grade, and the value of the improvements after the change, you are to consider the values of that time. And, if you find for the plaintiffs in that regard, and having assessed a reasonable and just compensation therefor, then you will consider the question of interest on the amount of damages found for the plaintiffs; and on that question I will instruct you that, if you find the plaintiffs are entitled to damages, then that they should be allowed interest thereon from the date of the injury to their improvements up to the first day of this term, to-wit, the 7th day of January, 1884. But, in order to save the question as to the right of the plaintiffs to recover interest, I will request of you to separately find the amount of compensatory damages and the amount of interest. * * * It is for you, gentlemen, to say, taking into consideration all the testimony on the subject, whether, under the circumstances, a retaining wall was reasonably necessary to protect the plaintiff's buildings and improvements, and, if a wall was necessary, then whether the wall which was constructed was such a retaining wall as was reasonably necessary. And if you find that the wall was reasonably necessary, and the wall constructed there was a reasonable wall for the purpose, then the plaintiffs should recover for the fair and reasonable cost of such wall. All these questions are questions appealing directly to your sound judgment and discretion, in view of the testimony; and if, on this question as to a retaining wall, you find for the plaintiffs, then they will be entitled to recover interest on the fair and reasonable cost of the retaining wall from the time of its completion up to the first day of this term, to-wit, the 7th day of January, 1884.’ An exception to the aforegoing portion of the charge was reserved and noted. The jury, on the issue joined, found for the plaintiffs, and assessed their damages at $4,897. Under order of the court the jury found separately the amount of compensatory damages and the amount of interest, as follows:

For injury to buildings and improvements $2,250 00

Amount of interest allowed on the above 1,485 00

Amount for retaining wall 700 00

Amount of interest allowed on the above 462 00

$4,897 00

Judgment was rendered for the amount of the verdict. A motion for a new trial was filed, overruled, and exception taken. A petition in error was then filed in the circuit court, and on hearing that court affirmed the judgment of the court of common pleas. This proceeding in error is prosecuted to reverse the judgment of the circuit court and the judgment of the court of common pleas.

Syllabus by the Court

Where a city, in making a street improvement, changes the established grade of the street, and damages are thereby sustained by the owner of an abutting lot, who in good faith has erected buildings thereon with a view to the established grade, and the city, before commencing and after the completion of the improvement, fails to assess the damages thus sustained, such owner, in an action against the city to recover compensation for the injury to his property by reason of the improvement, is entitled to interest on the amount of compensation awarded from and after the actual change of the established grade; and it is not error in the court to so charge the jury.

Coppock, Cox & Gallahger and Horstman Hadden, Foraker & Galvin , for plaintiff in...