City of Pontiac v. Carter

Decision Date08 June 1875
CourtMichigan Supreme Court
PartiesThe City of Pontiac v. Emeline Carter

Submitted on Briefs, April 30, 1875,

Error to Oakland Circuit.

Judgment of the circuit court reversed, with costs, and a new trial ordered.

James A. Jacokes and A. C. Baldwin, for plaintiff in error.

Moore & Moore and Sylvester Larned, for defendant in error.


Cooley J.

The weight of authority against this action is overwhelming. In the leading case of the Cast Plate Manufacturers v Meredith, 4 T. R., 794, which, like the one before us, was an action to recover damages suffered from raising the grade of a public way, Lord Kenyon states very concisely some of the reasons which preclude a private remedy in such a case: "If this action could be maintained, every turnpike act, paving act and navigation act would give rise to an infinity of actions. If the legislature think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power, the parties are without remedy, provided the commissioners do not exceed their jurisdiction. * * Some individuals suffer an inconvenience under all these acts of parliament, but the interests of individuals must give way to the accommodation of the public."--p. 796. The cases of Boulton v. Crowther, 2 B. & C., 703, and The King v. The Commissioners of Sewers, 8 B. & C., 355, hold the same doctrine. In the leading American case of Callender v. Marsh, 1 Pick. 418, 430, Parker, Ch. J., sets forth more fully the right of the public: "The streets on which the plaintiff's house stands had become public property by the act of laying them out conformably to law, and the value of the land taken must have been either paid for or given to the public at the time, or the street could not have been legally established. Being legally established, although the right or title in the soil remains in him from whom the use was taken, yet the public acquired the right not only to pass over the surface in the state it was in when first made a street, but the right also to repair and amend the street, and, for this purpose, to dig down and remove the soil sufficiently to make the passage safe and convenient. Those who purchase house-lots bordering on streets are supposed to calculate the chance of such elevations and reductions as the increase in population of the city may require, in order to render the passage to and from the several parts of it safe and convenient, and, as their purchase is always voluntary, they may indemnify themselves in the price of the lot which they buy, or take the chance of future improvements, as they shall see fit. The standing laws of the land giving to surveyors the power to make these improvements, every one who purchases a lot up on the summit or on the decline of a hill, is presumed to foresee the changes which public necessity or convenience may require, and may avoid or provide against loss." And again: "Highways, * * when rightfully laid out, are to be considered as purchased by the public of him who owned the soil, and by the purchase the right is acquired of doing everything with the soil over which the passage goes which may render it safe and convenient; and he who sells may claim damages not only on account of the value of the land taken, but for the diminution of the value of the adjoining lots, calculating upon the future probable reduction or elevation of the street or road; and all this is a proper subject for the inquiry of those who are authorized to lay out, or of a jury, if the parties should demand one. And he who purchases lots so situated, for the purpose of building upon them, is bound to consider the contingencies which may belong to them." The following cases either refer to Callender v. Marsh as authority, and follow it, or recognize and approve the principles on which it rests: Radcliff's Executors v. Brooklyn, 4 N.Y. 195; Matter of Furman St., 17 Wend. 667; Graves v. Otis, 2 Hill 466; Wilson v. New York, 1 Denio 595; Benedict v. Goit, 3 Barb. 459; Ely v. Rochester, 26 Barb. 133; Kavanagh v. Brooklyn, 38 Barb. 232; Green v. Reading, 9 Watts 382; Henry v. Bridge Company, 8 Watts & Serg. 85; O'Connor v. Pittsburgh, 18 Pa. 187; In re Ridge St., 29 Pa. 391; Benden v. Nashua, 17 N.H. 477; Sprague v. Worcester, 13 Gray 193; Clark v. Wilmington, 5 Del. 243, 5 Harr. 243; Humes v. Knoxville, 1 Humph. 403; Coates v. Davenport, 9 Iowa 227; Cole v. Muscatine, 14 Iowa 296; Russell v. Burlington, 30 Iowa 262; Burlington v. Gilbert, 31 Iowa 356; Roberts v. Chicago, 26 Ill. 249; Nevins v. Peoria, 41 Ill. 502 (where, as well as in some other cases, the right of a city to improve the streets as the authorities shall determine is best for the public interests, is declared to rest on the same ground as the right of a private person to deal with his own possessions); Snyder v. Rockport, 6 Ind. 237; Macy v. Indianapolis, 17 Ind. 267; Lafayette v. Bush, 19 Ind. 326; St. Louis v. Gurno, 12 Mo. 414; Lamber v. St. Louis, 15 Mo. 610; Hoffman v. St. Louis, 15 Mo. 651; White v. Yazoo, 27 Miss. 357; Commissioners v. Withers, 29 Miss. 21; Hovey v. Mayo, 43 Me. 322; Rounds v. Mumford, 2 R.I. 154; Keasy v. Louisville, 34 Ky. 154, 4 Dana 154; Alexander v. Milwaukee, 16 Wis. 247; Reynolds v. Shreveport, 13 La.Ann. 426; Bennett v. New Orleans, 14 La.Ann. 120; Dorman v. Jacksonville, 13 Fla. 538; S. C., 7 Am. Rep., 233; Simmons v. Camden, 26 Ark. 276; S. C., 7 Am. Rep., 620; Goszler v. Georgetown, 19 U.S. 593, 6 Wheat. 593, 5 L.Ed. 339; Smith v. Washington, 61 U.S. 135, 20 HOW 135, 15 L.Ed. 858. In the case last cited the action was based upon an alleged "unlawful and wrongful" alteration of a street to the injury of the plaintiff, but Grier J., in delivering the opinion of the court, says of the corporate authorities, that, "having performed this trust confided to them by law according to the best of their ability, judgment and discretion, without exceeding the jurisdiction and authority vested in them as agents of the public, and on land dedicated to public use for the purposes of a highway, they have not acted 'unlawfully or wrongfully,' as charged in the declaration. They have not trespassed on the plaintiff's property, nor erected a nuisance injurious to it, and are consequently not liable to damages, where they have committed no wrong, but have fulfilled a duty imposed on them by law as agents of the public. The plaintiff may have suffered inconvenience, and been put to expense in consequence of such action; yet, as the act of defendants is not unlawful or wrongful, they are not bound to make any recompense; it is what the law styles damnum absque injuria. Private interests must yield to public accommodation; one cannot build his house on the top of a hill in the midst of a city, and require the grade of a street to conform to his convenience at the expense of that of the public."--p. 148. Some of the cases cited are those in which the grade once established, and to which the plaintiff had conformed in building, had been changed to his injury afterwards; others were cases in which the injury resulted from the first grading.

It is nevertheless insisted on behalf of the plaintiff, that the cases cited are unsound in principle, and that, as there are opposing decisions, this court, which has hitherto never had occasion to consider the precise question, is at liberty to choose between them, and should follow those which are sound, rather than those which are most numerous.

Of the cases to which our attention is called by counsel for the plaintiff, those in Ohio do unquestionably sustain his view. McCombs v. Akron, 15 Ohio 474, is directly in point but is open to the criticism of having been decided in reliance on Rhodes v. Cleveland, 10 Ohio 159, which only holds that one whose land is flooded by means of ditches cut for municipal purposes may maintain an action therefor; a decision by no means requiring the one in McCombs v. Akron. The last named case came up again in 18 Ohio 229 (Akron v. McCombs), where the doctrine before declared was affirmed, but with little discussion, and apparently without much consideration of any thing beyond the general question of the liability of a municipal corporation to an action sounding in tort. A more distinct affirmation of the same doctrine is found in Crawford v. Delaware, 7 Ohio St. 459, which holds, that for any injury occasioned to an adjoining lot-owner by a change in the grade once established for a street an action will lie, but not for an injury occasioned by the first grading, for the owner "is presumed to purchase the lot with a view to a future improvement of the street, in such reasonable manner as the public authorities may deem expedient."--p. 470. The following Wisconsin cases are referred to: Pratt v. Brown, 3 Wis. 603; Fisher v. Horicon Co., 10 Wis. 351; Newell v. Smith, 15 Wis. 101, in all of which the complaint was that plaintiff's lands were flooded, or about to be, by unlawful structures across running streams; Walker v. Shepardson, 4 Wis. 486, which was an injunction-bill to restrain an improvement in a navigable stream for the benefit of one riparian proprietor to the prejudice of another; Weeks v. Milwaukee, 10 Wis. 242, which was a case in which an unlawful exemption from taxation was complained of; Smith v. Milwaukee, 18 Wis. 63, where the complaint was that a nuisance was being created on plaintiff's premises by the negligent construction of a public improvement; Pettigrew v. Evansville, 25 Wis. 223, which was an action to restrain a municipal corporation from causing plaintiff's premises to be flooded by means of an artificial channel dug to drain a pond. It is manifest that none of these cases is in point, and...

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