City of Pueblo v. Strait
Decision Date | 07 May 1894 |
Citation | 36 P. 789,20 Colo. 13 |
Parties | CITY OF PUEBLO v. STRAIT. |
Court | Colorado Supreme Court |
Appeal from district court, Pueblo county.
Action by William W. Strait against the city of Pueblo. From a judgment for plaintiff, defendant appeals. Affirmed.
It is alleged in the complaint: To this complaint a demurrer was filed and overruled. Afterwards an answer and amended answer were filed. The first, second, and third defenses set up in the amended answer were stricken out on motion. As no error has been assigned to any of the foregoing matters, these defenses will be omitted. The fourth defense reads as follows: The fourth defense was also stricken out upon motion of plaintiff. A jury was thereafter impaneled to determine the issues raised by the complaint to the fifth defense. The only question submitted to the jury was upon the question of damages. The jury returned a verdict in favor of the plaintiff for $3,000. A motion for a new trial having been interposed and overruled, the cause was brought into this court by appeal.
1. A city is not liable in damages to an abutting owner for injuries resulting from reasonable and ordinary or usual change and improvement of the street, made in a careful and skillful manner, for the benefit of the public.
2. The doctrine of damnum absque injuria does not apply where the municipal authorities have made an unreasonable change in the street, or put it or allowed it to be put to an extraordinary or unusual use.
3. The plaintiff is entitled to recover in this class of actions in cases where the damages suffered are different in kind from those suffered by the general public, but it is otherwise with respect to damages common to all. When damages are occasioned an abutting owner by an improvement in the street in front of his property, whereby ingress and egress to the premises are injuriously affected, the injury is not one common to the general public, and he may recover therefor.
4. The building of a viaduct in a public street of a municipal corporation is such an extraordinary use of the street as will entitle the owner of abutting property to damages when the means of ingress and egress to his property are obstructed or impaired thereby.
A. M. Nicholas and Dixon & Dixon, for appellant.
Charles E. Gast, Arrington & McAliney, J. J. McFeeley, and Urmy & McCorkle, for appellee.
HAYT, C.J. (after stating the facts).
The question presented by this record may be stated as follows Is a municipal corporation liable in damages for an injury to abutting property, occasioned by the building of a viaduct in a public street over railroad tracks? The evidence in this case shows that plaintiff's property is located on the corner of C and Mechanic streets in the city of Pueblo; that it was improved, and valuable for business purposes, prior to the erection of the viaduct; that this viaduct was elevated 8 feet above the old sidewalk at one end of plaintiff's property and 22 feet at the other, and that by reason thereof the property was closed to access by teams from either C or Mechanic streets; that by the construction of the viaduct the property was rendered practically inaccessible, except from an alley in the rear. That the property was damaged by the erection of the viaduct is shown by the uncontradicted evidence introduced at the trial. It is claimed by appellant that the viaduct is a necessary street improvement,...
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