City of Pueblo v. Strait

Decision Date07 May 1894
Citation36 P. 789,20 Colo. 13
CourtColorado 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: 'That on the 14th day of March 1890, plaintiff was, and still is, the owner of lots 1 and 2 in block 79 in the former city of South Pueblo, now part of the city of Pueblo, said lots being situate at the corner of C and Mechanic streets, and having a frontage of 140 feet on the former and 50 feet on the latter street. That said lots were improved with valuable buildings, and prior to the grievance complained of said property was valuable and desirable for business purposes, and readily rented for such purposes. That the defendant is a municipal corporation. That on or about the 14th day of March, 1890, the city council of Pueblo duly passed and adopted an ordinance entitled 'An ordinance providing for the construction of an iron viaduct or steel viaduct upon C street, in the city of Pueblo, and for granting certain easements and rights to the Denver and Rio Grande Railroad Company.' [Here follows the ordinance in full.] That in pursuance of said ordinance the building of said viaduct 'has been begun, and is now being prosecuted, by authority of the defendant; and that by reason of its height and proximity to the said property of plaintiff abutting on C street the aforesaid buildings are and will be greatly darkened and shut out from the natural light, the free circulation of air, natural to said property, materially obstructed and diminished, and that the approaches to said property are and will be greatly obstructed and hindered that said viaduct and approaches thereto are being built and will be maintained directly in front of plaintiff's property, whereby the same has been and will be greatly injured and damaged, and the market value thereof reduced and impaired.' That in consequence of the wrongs and injuries complained of the plaintiff has sustained damages in the sum of $8,000. Prayer for judgment.' 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: 'That it [the defendant] admits that it is a municipal corporation, as alleged in plaintiff's complaint; that the C street mentioned in the complaint is a public street in the city of Pueblo, extending from the eastern to the western limits thereof; that the Mechanic and Plum streets mentioned in said complaint are public streets in said city, crossing said C street at right angles, and lying parallel to and distant from each other about twelve hundred feet; that the portion of said C street between said Mechanic and Plum streets is crossed by a large number of railroad tracks, which, long prior to the construction of said viaduct, at the time thereof, and now were and are constantly used by the Denver and Rio Grande and other railroad companies in the prosecution of their business; that prior to the construction of said viaduct, by the frequent passing and repassing of the engines, cars, and trains of said companies over and across said portion of C street public travel along said C street between said Mechanic and Plum streets was greatly hindered, impeded, and rendered dangerous; that, in order to make public travel over and along said portion of C street safe and convenient, it became and was necessary for the defendant to erect the viaduct mentioned and described in the complaint; that said viaduct was carefully and properly constructed; that both it and its approaches were built wholly within the lines of public streets in said city of Pueblo, and without physical invasion or injury to the property described in the complaint as the property of the plaintiff; that the construction of said viaduct was both lawful and necessary, and was a reasonable and proper improvement and change of said portion of C street and Mechanic street adjacent thereto. Wherefore defendant not admitting that plaintiff has sustained the damage complained of, says that if the plaintiff's property has been injured, as alleged, by the construction of said viaduct, this defendant is not liable therefor. And for a fifth defense defendant admits that it is a municipal corporation; admits plaintiff's ownership of the property described; admits the passage of the ordinance set forth in the complaint, and the construction of the viaduct pursuant to the ordinance; denies that by the construction thereof the plaintiff's property is injured as complained of, or at all; denies that plaintiff has sustained damage thereby in the sum of $8,000, or in any sum whatever.' 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.

Syllabus by the Court

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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