City of Ft. Worth v. Howard

• Decision Date: 21 June 1893
• Citation: 22 S.W. 1059
• Parties: CITY OF FT. WORTH v. HOWARD.
• Court: Texas Court of Appeals

22 S.W. 1059

CITY OF FT. WORTH v. HOWARD.

Court of Civil Appeals of Texas.

June 21, 1893.

Appeal from district court, Tarrant county; N. A. Stedman, Judge.

Action by T. R. Howard against the city of Ft. Worth. Judgment for plaintiff. Defendant appeals. Affirmed.

T. J. Powell and Capps & Canty, for appellant. J. L. Hill, R. L. Carlock, and H. M. Chapman, for appellee.

STEPHENS, J.

This suit was brought by appellee, as the owner of five lots of land having a frontage of 125 feet on Bluff street, in the city of Ft. Worth, to recover of appellant the damages resulting to him as such owner from cutting down said street to a depth of from about 17 to 21 feet. To cover the diminution in value of said lots thus caused, the jury awarded appellee the sum of $4,500. This verdict is sustained by a preponderance of the evidence in establishing the truth of the material allegations of the petition, and in ascertaining the amount of the loss. There were two or three dwelling houses on the lots, and the property had been used and occupied by appellee 10 or 12 years when, in the year 1888, the excavation was undertaken, Bluff street being during that time a public street of the city of Ft. Worth, about on a level with his lots, and commonly used by him and others in connection with the occupancy of the lots. It seems that the grade of this street had never before been established, and appellant defended upon the ground that the excavations were made in improving the street, and placing the same upon a reasonable and proper grade. The proof showed that the depth of the cut was such as to deprive appellee of the use of the street, and to render his property inaccessible, except by a rear entrance or by a private way across the property of another, and, as a consequence, that it was greatly diminished in value. Since the addition of the word "damaged" in constitutions providing compensation to the owner of private property taken for public use, as is the case in our constitution, adopted in 1876, the current holding is that the owner of land abutting upon streets and highways is entitled to damages for any permanent injury inflicted upon such abutting lands by any material change of grade, whether from the natural or previously established grade, where such damages exceed the benefits derived from the grading or other improvement. Lewis, Em. Dom. § 223. See, also, the late case of Brown v. City of Seattle, (Wash.) 31 Pac. Rep. 313, a case quite similar to this, where the authorities are collated and reviewed. The correct rule, we think, is there stated in this language: "If no street practicable for the public use can be made without making cuts or fills which will damage abutting land, so as to reduce its value below that which it possessed before...