City of Montgomery v. Townsend

• Decision Date: 20 July 1888
• Citation: 4 So. 780,84 Ala. 478
• Parties: CITY OF MONTGOMERY v. TOWNSEND.
• Court: Alabama Supreme Court

4 So. 780

84 Ala. 478

CITY OF MONTGOMERY v. TOWNSEND.

Supreme Court of Alabama

July 20, 1888

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

George W. Townsend brought this action against the city council of Montgomery, claiming damages for the injury done his property by reason of the grading and cutting down of the sidewalks adjacent thereto, whereby his premises were left about 20 feet above the contiguous street. The sidewalks, before the grading in question, were from 18 to 4 feet above the street and had been so for many years. The street had been dedicated for public use to the city, and had been so used for 50 years continuously. There was verdict and judgment for plaintiff for $1,000. Defendant appeals. Defendant requested the following charges, which were refused: (1) "Under the evidence in this case, the jury must find for the defendant." (2) "The evidence in this case does not show any such construction or enlargement of the works highways, or improvements of defendant that makes defendant liable in this case, even if plaintiff was injured thereby if there was no invasion or trespass upon plaintiff's property." (3) "Under the evidence in this case the streets adjacent to plaintiff's property were dedicated as streets, and used as such by the public, for more than fifty years before the cutting down of the sidewalks. By this dedication there was no restriction to their use in their natural state, but was a surrender of their use as a thoroughfare as a safe and convenient way for travel and transportation, extending the entire width of the street; and, although the landowner retains the ultimate fee, his right of property is subservient to the use and enjoyment by the public, and to the reasonable exercise of the authority of the city council to prepare and adapt it, and to make necessary improvements to continue its adaptation to the public convenience and safety; and if the jury believe, from the evidence, that in cutting down the sidewalks adjacent to the plaintiff's property the defendant did nothing more than was necessary to continue the adaptation of said streets and sidewalks to the public safety and convenience, then they must find for the defendant."

Jones & Falkner and W. S. Thorington, for appellant.

Watts & Son, for appellee.

STONE C.J.

When this was before us at a former term, (80 Ala. 489, 2 South. Rep, 155,) we considered very fully the import and extent of section 7, art. 14, of the constitution of 1875, which reads as follows: "Municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements," etc. We defined the extent and operation of the new provisions said amendment had brought into our constitution, and we do not question the correctness of the interpretation we then agreed on and announced. We held that the cutting down of the sidewalk in the manner shown by all the testimony in the case might come within the purview of the word "construction," as employed in our constitution; and that the removal of the lateral support with the facility of access to plaintiff's lot, which the embankment had furnished, though not an interference with the plaintiff's land proper, might yet work such a present "injury" to his freehold as to entitle him to damages therefor. We fortified our ruling by many adjudged cases on similar constitutional provisions, to which we may add Railroad Co. v. Marchant, 13 A. 690,-a decision rendered since our former ruling in this case, reviewing and reaffirming former adjudications. We did not affirm that the principles stated were mere legal conclusions. We held the contrary, and reversed the city court's ruling, which stated them as matters of law. We held it was a mixed question of law and fact,-in other words, a question for the jury to determine, under certain rules of law to be given them in charge. Public streets are acquired by grant or dedication, or by condemnation; and the rules governing their improvement and use are substantially the same, no matter how acquired. The municipality is not restricted in its use to the soil in its natural state. Its surrender is to the public as a thoroughfare,-a safe and convenient way for travel and transportation. And this is co-extensive with the width of the street, including the sidewalks. In opening streets change of surface is usually necessary to adapt them to the uses for which they are laid out. It is rarely, if ever, the case that the surface of the soil, in its natural state, meets the requirements of street service. And the size and prospective growth of the town must be taken into the account; while, even in the same town, proximity to or remoteness from commercial centers and business wants must not be overlooked. In the grant, dedication, or condemnation of parts of the ground plat for the use of streets, all these wants and consequences are presumed to be in contemplation, and the necessary power to carry them into effect follows the dedication or condemnation. It is a power to change or improve the grade and natural surface of the street, as to make it useful, convenient, and safe for the amount and nature of travel and commerce, of which the street is likely to become the highway or thoroughfare. And this right to change and improve is not exhausted with one act of improvement. It extends through all time. And, as we have said, this power is as effectually conferred on the municipality as if it were expressed in the grant or dedication, or expressly prayed for and granted in the condemnation proceedings. Persons who obtain title to such lots abutting on such streets, whether original or subsequent purchasers, are charged with notice of such power, and cannot complain of its exercise. "Authority to make all needed excavations or embankments or alterations, to render the street safe and convenient, is implied in the dedication which follows the coterminous soil, into whosesoever hands it may pass." But this power is not without limit. "A material change, operating injury to adjoining premises, occasioned by a contingency which could not have been reasonably and fairly foreseen, or made merely because the corporate authorities may judge that the public convenience would be increased thereby, or the general appearance of the street improved, is a new description of injury, in the enlarged sense of the constitution, which casts on the property owner an additional burden, entitling him to compensation." It is not every change operating an increase of convenience which falls within this rule. Changes generally have for their object increase of convenience. This power may be exercised completely at one time, or on several occasions, as circumstances amy suggest; and it authorizes the municipality to so alter the grade or surface of the streets as to make them useful, convenient, and safe for travel and transportation, as the same may be likely to be in request generally or on the particular street. To come within the clause of the constitution we are discussing, the change, alteration, or improvement must go beyond this. It must be the result of a contingency not likely to be foreseen or anticipated, or must be an increase of convenience above the ordinary standard of "useful, convenient, and safe," or must be made for ornamentation, or for the purpose of improving the general appearance of the street.

We have thus attempted to define, as well as we can, the two classes of street alteration or improvement. The power to make such as fall within the one class is conclusively presumed to have been conferred by the act of dedication or by the judgment of condemnation. In fact, it is so generally conferred that it may almost be said to be inherent in municipal organization. For the proper exercise of this power, the contingent property holder, though injured, is without redress. For injury suffered from the other, he is entitled to compensation under the new provision of our constitution of 1875. But whether the case falls within the one class or the other must depend on so many phases and shadings of fact that it can rarely, if ever, become a question of law. Larger license must allowed in a city than in a village; in a commercial center and crowded thoroughfare than in an obscure off-street. Hence it is a mixed question of law and fact, to be pronounced on by a jury under proper instructions.

Another question may become important in cases of this kind. Are the damages recoverable in a suit like this confined to the injury which results directly from the construction itself or can later injuries or annoyances which result consequentially be the subject of a recovery? We hold that the first of these propositions is the true one. We adopt as sound the following language of the supreme court of Pennsylvania in Railroad Co. v. Marchant, supra: "It is very plain to our view that the constitutional provision was only intended to apply to such injuries as are capable of being ascertained at the time the works are being constructed or enlarged, for the reason, among others, that it requires payment to be made therefor or security to be given in advance. This is only possible where the injury is the result of the construction or improvement." No question can arise in this case on the power and duty of the city government to keep the streets in proper repair for the uses to which they were dedicated. In...