City of Denver v. Vernia

• Decision Date: 16 November 1885
• Citation: 8 P. 656,8 Colo. 399
• Parties: CITY OF DENVER v. VERNIA.
• Court: Colorado Supreme Court

8 P. 656

8 Colo. 399

CITY OF DENVER v. VERNIA.

Supreme Court of Colorado

November 16, 1885

Appeal from county court, Arapahoe county.

Frank Telford and John C Stallcup, for appellant.

G H. Gray, for appellee.

BECK C.J.

This is an action against a municipal corporation for damages to property fronting upon a public street, which damages are alleged to have been caused by the grading of a sidewalk immediately in front of such property. The trial was to the court without a jury, and the finding and judgment were in favor of the plaintiff below, Thomas Vernia; the amount thereof being the sum of $1,200. Exceptions were saved to the finding and judgment, which we deem sufficient to authorize us to review the case upon the law, under section 413 of the Code of Civil Procedure, which section provides as follows:

'Exceptions taken of opinions and decisions of the district and county courts, upon the trial of causes, in which the parties agree that both matters of law and fact may be tried by the court, shall be deemed and held to have been properly taken and allowed; and the party excepting may assign for error before the supreme court any decision or opinion so excepted to, whether such exception relates to receiving improper, or rejecting proper, testimony, or to the final judgment of the court upon the law and the evidence.'

The plaintiff, Vernia, alleges in his complaint that on or about December 23, 1881, he purchased two lots fronting on Larimer street, in the city of Denver, between Twenty-fifth and Twenty-sixth streets, and that he afterwards erected two brick store buildings upon the surface of said lots, and fronting upon said street. He alleges that the street had been graded slightly at that point prior to his purchase and that a horse-railway line had been established in the center of the street, and that the line so established was being operated at that time, and continued to be operated, on the same grade up to the bringing of this suit. This grade was nearly on a level with the surface of his lots. He states various acts of the city which induced him to believe that the grade of the street, at the time of his purchase, and at the time of erecting his buildings, was the established grade of said street at which it would be permanently maintained, and that, so believing, he made his improvements accordingly; that about the month of April, 1882, which was after his buildings had been erected, the city compelled him to lay a stone sidewalk in front of said lots and buildings, on a grade about three feet below the natural surface of his lots, and about the same depth below a board sidewalk previously laid in front of his buildings. He further avers that said grade was much below the grade at which the street was then being maintained.

The plaintiff alleges that the excavation of this cut or grade rendered ingress from the street and sidewalk to his buildings, and erress therefrom to the sidewalk and street, difficult; that it could only be effected by steps which he was compelled to erect, and that his property was rendered almost worthless for building purposes by this excavation; that the sidewalk was 'laid so far below the rest of the street, and the lots adjoining, that the drainage, wash, and surface water drift from the street and lots adjoining, run and collect there, cutting off travel, and emitting offensive odors and the germs of disease, rendering the lots of the plaintiff unfit for use, and less valuable for residence, and far less valuable for business purposes, and every other purpose.' He also alleges that the defendant did all these acts wantonly, causelessly, and wrongfully, to the plaintiff's injury, and that the doing of said acts has damaged the plaintiff's lots and improvements in the sum of $2,000.

The defense set up by the city was that the grade of said street had been established by the city council several years before the plaintiff's purchase of the property, and that the grade so established had never been altered; that although the street at that point had never been excavated to the established grade, yet the sidewalk, the excavation of which is the subject-matter of complaint, was laid on the established grade; that the grade so fixed was about three feet below the natural surface of the streets and sidewalks; of which facts the plaintiff had notice at the time of his purchase and the making of his improvements. Defendant denied that the property was rendered worthless or less valuable by this improvement; denied that the city did, or caused any acts to be done, wantonly, carelessly, unskillfully, or wrongfully, and denied that the plaintiff was entitled to any damage or relief.

The character of the plaintiff's proof was to show how much less his property was worth after the laying of the sidewalk than before it was laid, or, in other words, how much permanent damage he had sustained by this excavation.

At the close of the plaintiff's testimony, defendant moved for a nonsuit, on the ground that the buildings for which damages were claimed had not been built on the established grade. The motion was denied, and an exception saved.

On the part of the city, it was proven that the grade of this street was established by the city council in 1875, and had never since been altered; that the sidewalk was, by the direction of the defendant, laid at this grade; that plaintiff had made no inquiry of the city officers previous to making his improvements, or prior to his purchase, whether a grade had been established or not. It was also proven that at the time of making the plaintiff's improvements the following city ordinance was in force, viz.:

'Before any person or persons shall commence the erection or construction of any building upon the line of any street or public highway within the city of Denver, where the grade has been already established, he or they shall apply to the city engineer for the grade of said street, and thereupon it is made the duty of the city engineer to furnish to such person or persons the grade of such street or public highway; and if any person shall violate the provisions of this section he shall, upon conviction, be fined not less than ten nor more than fifty dollars.'

It is apparent from the record that the cause was tried by the court upon the theory that the lowering of the sidewalk to grade was a permanent injury to the plaintiff's lots and buildings, for which he was entitled to damages. The conduct of the trial, and the character of the inquiries made of the witnesses, both by the plaintiff's counsel and by the court, show that the case was tried upon this view of the law. This same theory is now relied upon to sustain the judgment. It is contended that any excavation of the street or sidewalk made...