City of La Fayette v. Nagle

Citation113 Ind. 425, 15 N.E. 1
Case DateJanuary 18, 1888
CourtSupreme Court of Indiana

113 Ind. 425
15 N.E. 1

City of La Fayette
v.
Nagle.
1

Supreme Court of Indiana.

January 18, 1888.


Appeal from circuit court, Clinton county; Allen E. Paige, Judge.

Action by plaintiff, Nagle, to recover damage for a change in the grade of a street in the defendant city of La Fayette. Judgment for plaintiff. Defendant appealed.


W. C. L. Taylor, for appellant. J. Claybaugh, for appellee.

Elliott, J.

The material facts stated by the appellee as a cause of action are these: In 1875 she became the owner of a lot in the city of La Fayette, along the south line of which is a public alley, extending from Earl avenue to Thompson street. On the fifteenth day of December, 1879, the grade of the alley was established. On the first of April, 1881, the grade was changed, and the surface of the alley lowered five feet at its intersection with Earl avenue. This change in the grade destroyed all means of access to the rear of appellee's lot by ordinary vehicles, travel, and traffic.

[15 N.E. 2]

Prior to the enactment of our statute making municipal corporations liable for consequential damages resulting from a change of grade, no action would lie; but the rule has been entirely changed, and a right of action is vested by the statute in abutting lot-owners who sustain injury from a change in the established grade of a street or alley. City v. Mahan, 100 Ind. 242;City v. Pollard, 50 Ind. 151. To constitute a cause of action, there must be a legal injury, and resulting damages. City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. Rep. 821; City v. Mahan, supra. An illegal change of grade may be regarded as the injury, but without resulting damages no action will lie. The injury must be special, and not merely such as the public may suffer; for a private person cannot recover damages for the unlawful obstruction or destruction of a highway unless he has suffered special damages. Railway Co. v. Eberle, 110 Ind. 542, 11 N. E. Rep. 467, 59 Amer. Rep. 225; Sohn v. Cambern, 106 Ind. 302, 6 N. E. Rep. 813; Cummins v. City, 79 Ind. 491, 41 Amer. Rep. 618. Where, however, access to a lot is cut off, the abutter loses a valuable right, and does suffer injury peculiar to himself, and different, both in kind and in degree, from that which the public sustains. The right of the abutter is property in the strictest sense, and from him this property cannot be taken by the sovereign power without just compensation. Haynes v. Thomas, 7 Ind. 38;Common Council v. Croas, Id. 9; Butterworth v. Bartlett, 50 Ind. 537;State v. Berdetta, 73 Ind. 185, 38 Amer. Rep. 117; City v. Kingsbury, 101 Ind. 200, 211;Railway Co. v. Eberle, supra. It cannot be unknown to courts that streets and alleys add value to lots in a city; for, not only is this a fact commonly known, but it is also recognized in many judicial decisions. We therefore assume as matter of law, on the facts stated, that the appellee sustained a special injury resulting in damages to her.

It does not require that a witness shall be an expert, to entitle his opinion to go to the jury upon the question of the yalue of property. If it appears that he has an acquaintance with the values of property in the vicinity, his opinion is competent, but its weight will in a great measure depend upon the knowledge he is shown to possess. An opinion on such a question may be of little weight, but nevertheless be competent. The rule is thus stated by Mr. Lawson: “The market value of land is not a question of science and skill, upon which only an expert can give an opinion. Persons living in the neighborhood may be presumed to have a sufficient knowledge of the market value of property from the location and character of the land in question.” Exp. Ev. 435; Yost v. Conroy, 92 Ind. 464. It was competent to take the opinion of witnesses as to the value of the appellee's property as it was before the change from the previously established grade, and as it was after the change was made. Yost v. Conroy 92 Ind. 464, and authorities cited. See 47 Amer. Rep. 156; Railway Co. v. Peck, 99 Ind. 68;Railroad Co. v. Crawford, 100 Ind. 550;Turnpike Co. v. Andrews, 102 Ind. 138, 1 N. E. Rep. 364; Heick v. Voight, 110 Ind. 279, 11 N. E. Rep. 306. There was no error in permitting witnesses to state what experience they had in using alleys, nor was there error in permitting them to state what use could be made of the alley after the grade was changed.

The court was right in instructing the jury that the appellee was entitled to recover, if the grade, after having been once established, was changed. The statute authorizes a change of grade only in case where compensation is made, and where the municipal authorities disobey this statute the corporation must respond in damages. There is nothing in Mattingly v. City, 100 Ind. 548, that conflicts with this ruling. We here affirm what was there held, that no action will lie unless the grade has once been established by the cor porate authorities. The city, having disobeyed the law, must suffer the penalty of its disobedience, by paying the lot-owner compensation for the injury proximately resulting from its illegal act. The statute does not shield the

[15 N.E. 3]

city except in cases where its directions have been obeyed. If a municipal corporation elects to make the change without tendering or paying compensation, as the law requires, a right of action accrues in favor of the abutter as soon as the wrong which causes the damages is complete. It is the appellant, and not the appellee, that is mistaken as to the theory on which the complaint is constructed. The theory of the complaint is that the appellant has changed a previously established grade in violation of the statute, and thus inflicted an injury upon the appellee by a wrongful act.

As applied to the evidence in the case, and considered in...

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24 practice notes
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...cannot maintain successive actions as each fresh annoyance occurs." The author cites in support of the text: City of Lafayette v. Nagle, 113 Ind. 425; City of Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821; Central Branch R. R. Co. v. Andrews, 34 Kan. 563. The author further says, on the same ......
  • Kinsey v. Union Traction Co., No. 20,471.
    • United States
    • Indiana Supreme Court of Indiana
    • June 27, 1907
    ...this state, recognized as property, of which such abutting owner cannot be deprived without just compensation. City of Lafayette v. Nagle, 113 Ind. 425, 15 N. E. 1, and authorities there cited: Terre Haute, etc., Co. v. Scott, 74 Ind. 29;Terre Haute, etc., R. Co. v. Rodel, 89 Ind. 128, 46 A......
  • Mary Jane Stevens Co. v. First Nat. Bldg. Co, 5029
    • United States
    • Utah Supreme Court
    • May 13, 1936
    ...acquaintanceship with the land in the vicinity which enables him to judge. City of Geneseo v. Schultz, supra; City of Lafayette v. Nagle , 113 Ind. 425, 15 N.E. 1; Pennsylvania & N.Y. R. & Canal Co. v. Bunnell, 81 Pa. 414. An opinion founded upon a knowledge of the location, productiveness,......
  • State v. Vaughan, No. 30087
    • United States
    • Indiana Supreme Court of Indiana
    • July 13, 1962
    ...211 Ind. 180, 5 N.E.2d 973; Public Utilities Co. v. Handorf (1916), 185 Ind. 254, 112 N.E.2d 775; City of Lafayette v. Nagle (1888), 113 Ind. 425, 15 N.E. 1; Consolidated Traction Co. v. Jordan (1905), 36 Ind.App. 156, 75 N.E. 301; Evansville and Richmond Railroad Company v. Fetting (1891),......
  • Request a trial to view additional results
27 cases
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...cannot maintain successive actions as each fresh annoyance occurs." The author cites in support of the text: City of Lafayette v. Nagle, 113 Ind. 425; City of Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821; Central Branch R. R. Co. v. Andrews, 34 Kan. 563. The author further says, on the same ......
  • Kinsey v. Union Traction Co., No. 20,471.
    • United States
    • Indiana Supreme Court of Indiana
    • June 27, 1907
    ...this state, recognized as property, of which such abutting owner cannot be deprived without just compensation. City of Lafayette v. Nagle, 113 Ind. 425, 15 N. E. 1, and authorities there cited: Terre Haute, etc., Co. v. Scott, 74 Ind. 29;Terre Haute, etc., R. Co. v. Rodel, 89 Ind. 128, 46 A......
  • Mary Jane Stevens Co. v. First Nat. Bldg. Co, 5029
    • United States
    • Utah Supreme Court
    • May 13, 1936
    ...acquaintanceship with the land in the vicinity which enables him to judge. City of Geneseo v. Schultz, supra; City of Lafayette v. Nagle , 113 Ind. 425, 15 N.E. 1; Pennsylvania & N.Y. R. & Canal Co. v. Bunnell, 81 Pa. 414. An opinion founded upon a knowledge of the location, productiveness,......
  • State v. Vaughan, No. 30087
    • United States
    • Indiana Supreme Court of Indiana
    • July 13, 1962
    ...211 Ind. 180, 5 N.E.2d 973; Public Utilities Co. v. Handorf (1916), 185 Ind. 254, 112 N.E.2d 775; City of Lafayette v. Nagle (1888), 113 Ind. 425, 15 N.E. 1; Consolidated Traction Co. v. Jordan (1905), 36 Ind.App. 156, 75 N.E. 301; Evansville and Richmond Railroad Company v. Fetting (1891),......
  • Request a trial to view additional results

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