City of Denver v. Donesteel

• Decision Date: 02 June 1902
• Citation: 69 P. 595,30 Colo. 107
• Parties: CITY OF DENVER v. DONESTEEL.
• Court: Colorado Supreme Court

69 P. 595

30 Colo. 107

CITY OF DENVER v. DONESTEEL.

Supreme Court of Colorado

June 2, 1902

Appeal from district court, Arapahoe county.

Action by Louisa D. Bonesteel against the city of Denver. From a judgment for plaintiff, the defendant appeals. Transferred from the court of appeals. Affirmed.

Action for damages for injury to plaintiff's city lots caused by a change of grade of adjacent Ogden street and Eleventh avenue, which change was made under authority of the city of Denver. Plaintiff is the owner of four city lots at the corner of Ogden street and Eleventh avenue in the city of Denver. In 1887 the city passed an ordinance establishing the grade of the avenue and street in question, making the grade line about eight feet below the natural surface of the lots. The streets were reduced to that grade, and, with reference to the level of the streets thus reduced, plaintiff built upon her lots a dwelling house and barn; planted trees; and relying upon the fact, and so believing, that the grade of the streets as established was permanent, for the purpose of retaining the earth of the lots, built at the line of the lots, and fronting on the highways, a retaining wall of stone eight feet in height at one place and about five feet elsewhere. In 1897, by an ordinance duly passed, the city changed the grade of these highways where plaintiff's premises abut thereon, the effect of which was, when the streets were made to conform thereto, that the surface of the highways was lowered to the depth of about three feet at the corner of plaintiff's premises, and at other places in front of the same to the depth of about two feet below the grade as established by the previous ordinance. The result of the change is said to make ingress to and egress from the premises more difficult than theretofore, to require expense to be incurred in enlarging and replacing the retaining wall and to diminish the value of the premises. The result of the trial before a jury was in plaintiff's favor in the sum of $1,700, upon which was entered the judgment from which the city has appealed.

H. M. Orahood, City Atty., and H. L. Ritter, Asst City Atty., for appellant.

E. T Wells, for appellee.

CAMPBELL C.J. (after stating the facts).

None of the questions discussed are worthy of consideration except the liability of the city for a change of grade. The objections that witnesses were permitted to give their opinion as to the amount, and to the instructions of the court on the measure, of damages, are not serious, though the form of some of the questions may be technically improper. The court substantially submitted the case to the jury, and permitted evidence to be introduced, upon the theory that the measure of damages was the diminution, if any, of the actual market value of the premises occasioned by the change of grade; that is to say, the damage, if any, was the difference between the market value of the premises before and after the streets were leveled in accordance with the change of grade. This was correct.

The important and vital question is whether any liability of the city has been shown. It is the contention of plaintiff that under section 15, art. 2, of the constitution, declaring 'that private property shall not be taken or damaged, for public or private use, without just compensation,' her property has in the constitutional sense been damaged. The position of defendant is that since the power to grade and improve streets is vested in the city, and is a continuing power, of the necessity for and expediency of the exercise of which the city alone is the judge, unless, by constitution or statute, compensation is expressly awarded for changes resulting from such public improvements, there can be no recovery. The claim is also made that under previous decisions of this court a reasonable change or improvement in a street, such as this is, though it may result in consequential damage to the abutting owner, entails no liability therefor upon the municipality; that it is only for an unreasonable use, or capricious change of grade, or for the negligent or unskillful manner in which the work of changing the grade is accomplished, that the city in any event may be charged. The decisions referred to, which we will have occasion to mention later, are: City of Denver v Bayer, 7 Colo. 113, 2 P. 6; Same v. Vernia, 8 Colo. 399, 8 P. 656; Railroad Co. v. Nestor, 10 Colo. 403, 15 P. 714; City of Denver v. Rhodes, 9 Colo. 554, 13 P. 729; Aicher v. City of Denver, 10 Colo.App. 413, 52 P.

86; Railroad Co. v. Domke, 11 Colo. 247, 17 P 777; Gilbert v. Railway Co., 13 Colo. 501, 22 P. 814; City of Pueblo v. Strait, 20 Colo. 13, 19, 36 P. 789, 24 L.R.A. 392, 46 Am.St.Rep. 273. All the authorities say that at common law, and in the absence of statutory or constitutional authority, a municipality in a case like the one at bar is not liable. 2 Dill. Mun. Corp. (4th Ed.) §§ 686, 989-995. In 1870 there was inserted in the constitution of the state of Illinois a section that 'private property shall not be taken or damaged for public use without just compensation.' Section 13, art. 2, Const. In Rigney v. City of Chicago, 102 Ill. 64, by a divided court, it was held, under this clause, that an abutting owner might recover in cases where 'there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage, in excess of that sustained by the public generally, which, by the common law, would, in the absence of constitutional or statutory provisions, give a right of action.' And in applying that principle the city was held liable for constructing a viaduct upon a public street near its intersection with another street, thereby cutting off access to the plaintiff's house and lot from and along the street intersected. Since that time, the states of Alabama, Arkansas. California, Colorado, Georgia, Kentucky, Mississippi, Missouri, Montana, Nebraska, Texas, Washington, and possibly others have adopted similar provisions, and the courts of last resort thereof have followed the construction given by the supreme court of Illinois in the Rigney Case, as will be seen by the following, among other cases that might be cited: Harmon v. City of Omaha, 17 Neb. 548, 23 N.W. 503, 52 Am.Rep. 420; Hammond v. City of Harvard, 31 Neb. 635, 48 N.W. 462; Werth v. City of Springfield, 78 Mo. 107, 110; Gibson v. Owens, 115 Mo. 258, 21 S.W. 1107; City of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; City of Ft. Worth v. Howard, 3 Tex.Civ.App. 537, 22 S.W. 1059; Reardon v. City and County of San Francisco, 66 Cal. 492, 504-506, 6 P. 317, 56 Am.Rep. 109; Eachus v. Railway Co., 103 Cal. 614, 37 P. 750, 42 Am.St.Rep. 149; Brown v. City of Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L.R.A. 161; O'Brien v. City of Philadelphia, 150 Pa. 589, 24 A....