City of Henderson v. McClain
| Decision Date | 09 December 1897 |
| Citation | 102 Ky. 402 |
| Parties | City of Henderson v. McClain. |
| Court | Kentucky Court of Appeals |
APPEAL FROM HENDERSON CIRCUIT COURT.
CLAY & CLAY FOR APPELLANT.
YEAMAN & LOCKETT FOR APPELLEE.
The appellee brought suit against the city of Henderson, alleging that she was the owner of a lot of land fronting on Center street, and had easy and free access to and use of that street in going to and from her residence; that the appellant, in pursuance of an ordinance of its common council, caused the street to be excavated in front of and adjoining her property, up to the line thereof, to such an extent and depth as to ruin her fence and enclosure, wholly destroying her access to and use of the street, leaving the surface of her lot from eight to ten feet above the street and sidewalk and the entrance to her dwelling barred by a high, perpendicular bank, so that her only ingress and egress is by an alley; that the dwelling is so situated upon the lot that the lot can not be graded so as to give access to the street, and that to protect the lot from constant caving, which would finally destroy the house, would require the construction of a wall along its whole front, at great expense; that by notice to the city, delivered to its mayor, she objected to and protested against the excavation before it was made, and gave notice that she would be damaged thereby and would seek to hold the city responsible.
A demurrer to the petition was sustained and an amendment filed, which, after the answer was filed and a reply thereto, was withdrawn by the appellee, and the appellant thereupon withdrew its answer and moved to dismiss the petition. The order sustaining the demurrer was set aside and the demurrer overruled. Appellant then filed its answer, and a trial was had which resulted in a verdict for appellee. As there is no bill of exceptions, and as the record does not show that the instructions were objected to, the only question presented to this court is the sufficiency of the petition.
Without determining the question whether this petition presents a case of partial destruction of the property by the city, amounting to an invasion of private rights within the rule in the cases of the City of Louisville v. Louisville Rolling Mill Co., 3 Bush, 424, and Kemper v. City of Louisville, 14 Bush, 90, we shall consider whether the rule of Wolfe v. Covington & Lexington R. R. Co., 15 B. Mon., 404; Keasey v. City of Louisville, 4 Dana, 154; L. & F. R. R. Co. v Brown, 17 B. Mon., 763, and N. & C. Bridge Co. v. Foot, 9 Bush, 264, that a municipal corporation has authority to grade or regrade a street for a public purpose, without incurring responsibility to the owners of abutting lots, although the street might be raised several feet above the level of the lot, and that the citizen must submit to such incidental disadvantages as resulted therefrom, has been altered by section 242 of the present Constitution.
The general rule was, as stated in Dillon's Municipal Corporations, section 990, that "municipal corporations, acting under authority conferred by the legislature to make and repair, or to grade, level and improve streets, if they keep within the limits of the street and do not trespass upon or invade private property, and exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to the adjoining owner, whose lands are not actually taken, trespassed upon or invaded for consequential damages to his premises unless there is a provision in the Constitution of the State, in the charter of the corporation, or in some statute, creating the liability."
The Constitution of 1850 provided in section 14 of the Bill of Rights that no "man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him."
The present Constitution, in addition to the section just quoted, which is contained in section 13 of the Bill of Rights, provides in section 242: "Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them, which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction."
The adoption of this section, in addition to the provisions of section 13, in our view undoubtedly indicated an intention to change the organic law of the State, and to abolish the requirement of direct physical injury to the property in order to establish a claim for damages. The language used is that municipal corporations shall make just compensation for property taken, injured or destroyed by them. The city undoubtedly has the right to take private property, having the right of eminent domain. It also has the undoubted right to improve the streets for the public use, in proper manner, when thereto authorized by legislative authority. If, however, in making the improvement it takes, injures or destroys private...
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