City of Rawlins v. Murphy, 642

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBEARD, CHIEF JUSTICE.
Citation115 P. 436,19 Wyo. 238
PartiesCITY OF RAWLINS v. MURPHY ET AL
Decision Date09 May 1911
Docket Number642

115 P. 436

19 Wyo. 238

CITY OF RAWLINS
v.
MURPHY ET AL

No. 642

Supreme Court of Wyoming

May 9, 1911


ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG, Judge.

The material facts are stated in the opinion.

Reversed in part and affirmed in part.

Charles E. Blydenburgh, for plaintiff in error.

The statute of limitations had run before the bringing of the action, both as to the grading on 5th street and on Front street. Counsel for defendants in error contended in the trial court that the action was for a statutory liability, since the constitution prescribes that property shall not be damaged for public use without just compensation, and that therefore the action was controlled as to limitation by Section 3455, Revised Statutes 1899 (Comp. Stat. 1910, Sec. 4299.) Our contention is that the section applicable to the question is Section 4300, Comp. Stat., which requires an action for an injury to the rights of plaintiff not arising on contract "and not hereinafter enumerated" to be brought within four years. (R. R. Co. v. Wolfe, 148 F. 961; R. Co. v. O'Connor, 60 N.W. 326; R. Co. v. Mochel, 56 N.W. 875; Clerk v. Water Com'rs (N. Y.), 42 N.E. 414.) A liability created by the constitution is not a liability created by statute as intended or expressed in the statute of limitations. Such statutes are to be construed so as to give them full force and effect. (Black's Interp. of Law, 332; U. S. v. Wilder (80 U.S.), 20 L.Ed. 682; McCluny v. Silliman (3 Peters), 7 L.Ed. 678.) The decisions in Nebraska are particularly in point, since their constitution is like our own, and also their statute of limitations. (Omaha v. Flood, 77 N.W. 379.) The statute of limitations begins to run from the time when a complete cause of action accrues, that is, when suit may be maintained. (25 Cyc. 1065.) There can be no doubt that when the grading had been completed in 1901, so that the city authorities notified the parties that a sidewalk should be laid, and the sidewalk was laid during September, 1901, the right to bring the suit accrued, and the statute then began to run. Work done in smoothing off the surface of a street is not a change of grade. (Comesky v. Sufforn, 72 N.E. 320; Whitmore v. Tarrytown, 53 N.E. 489; Fallington v. Mt. Vernon, 59 N.E. 826; Stenson v. Mt. Vernon, 93 N.Y.S. 309.)

It was the theory of the defendants in error in the court below that the damages were inseparable. It was contended by the city that no part of the Union Pacific right of way could become a street. Defendants in error, plaintiffs below, allege that both Front street and 5th street adjacent to their property were and had been public highways, and in the custody and control of the municipal authorities. This was denied by the answer and it devolved upon the plaintiffs to prove that both streets named were under the control of the city, and also to prove the limitations and boundaries of the streets as adjacent to the property. It was admitted in the answer that 5th street was a city street and that some grading to the rear of the building of plaintiffs had been done that lowered the surface level, but that was the extent of the admission. The trial court held that nothing could be recovered on account of the grading on Front street, for the reason that it was situated entirely upon the right of way of the Union Pacific Railroad Company. Hence, for the purpose of this appeal we would not be required to show that said Front street was not a highway of the city, but we contend that a considerable portion of the evidence introduced by plaintiffs related to that part of 5th street which is also upon the railroad right of way. A street or highway can only be created either by grant, by dedication, by eminent domain proceedings, or by prescription. There is no evidence to show a grant of a street or highway on Front street or that part of 5th street located on the railroad right of way. A dedication depends upon the intent of the party. (13 Cyc. 451, 452; 2 Dillon Munic. Corp. 646; Elliott v. Atlantic City, 149 F. 849; Westport v. Bland, 51 S.E. 803.) There can be no highway on such right of way, but even if there had been an intention to dedicate a street the railroad company was unable to do that, nor could any street be acquired upon that right of way by condemnation proceedings or by prescription. (R. Co. v. Kindred, 23 P. 112; Ry. Co. v. Williams, 148 F. 442; McLucas v. Ry. Co., 97 N.W. 322; R. Co. v. Townsend (190 U.S.), 47 L.Ed. 1044.) It is evident that the city had not any exclusive control over the railroad right of way, and that there is no street upon such right of way. No true estimate or way of arriving at the damage done by the grading on 5th street is to be found in the evidence introduced by the plaintiffs. The question was first asked as to the value of the property immediately preceding the grading in 1901 and 1902 on Front and 5th streets, and after that question was answered the witness was asked the hypothetical question as to the valuation immediately after the grading. Then the question was asked as to what the damage would be on 5th street, assuming the value in every instance before the grading on Front and 5th streets together without inquiring as to the value before the grading on 5th street. This is material for the reason that it seems now to be the theory of defendant in error, and to have been the theory of the court, that the grading on Front street was completed some time before the grading on 5th street was completed, and all these gradings seem to have been taken into consideration by the witnesses. We contend that under the pleadings in the case no proof of separate damages is allowable, but if damages could be recovered for the grading on one street alone the witnesses should have been asked to testify as to the value of the property after the grading on Front street, so-called, and immediately before the leveling on 5th street north of the railroad right of way, and then as to the value immediately following such grading of 5th street, so as to show what the damages occurring to the property were on account only of the grading to that portion of 5th street which was under the exclusive control of the city as a street.

The court erred in allowing interest upon the damages. First there is no prayer or demand in the amended petition for interest. And in the absence of any such demand the plaintiffs were not entitled to interest. (March v. Wright, 14 Ill. 248; Carter v. Lewis, 29 Ill. 500; Prescott v. Maxwell, 48 Ill. 82; Race v. Sullivan, 1 Ill.App. 94; Grand Lodge v. Bagley, 60 Ill. 589; David v. Conrad, 1 G. Green, 336; Krause v. Hampton, 11 Ia. 457; Green v. Dunn, 5 Kan. 254; Shepard v. Pratt, 16 Kan. 209; Graves v. Wallers, 4 Ky. L. Rep. 452; Babin v. Nolan, 6 La. Ann. 295; Brown v. Bessou, 30 La. Ann. 734; Van Piper v. Morton, 1 Mo.App. 651; 61 Mo.App. 440; Goggan v. Evans (Tex.), 33 S.W. 891; Express Co. v. Milton, 74 Ky. 49; Shockley v. Fischer, 21 Mo.App. 551; Denise v. Sweet, 68 Hun 188.) Interest is not recoverable upon an unliquidated demand. (22 Cyc. 512 and cases cited.) We are aware that there is an exception to this rule, viz: that where an unliquidated demand is ascertainable by mere computation, it will bear interest; but where it requires evidence and a trial to ascertain the amount of the unliquidated demand, interest is not allowed, especially if the evidence be conflicting. In this case there can certainly be no interest allowed from the mere filing of a bill with the city, which is the date from which interest was computed. By no construction of Section 3358, Compiled Statutes, or any other statute, can statutory authority be found for interest upon damages for change of grade. (Hawley v. Baker, 5 Colo. 118; Palmer v. Murray, 21 P. 127.) No proper bill was ever presented to the city. This case was brought upon the theory that the cause of action itself and the damages to be recovered therein are inseparable, and the judgment cannot be upheld therefor which was awarded upon an entirely different theory. It is the duty of the plaintiff to plead his cause of action with reference to a theoretical right of recovery, and it must be good on that theory or else it will be insufficient. The plaintiff cannot obtain relief upon a different theory from that upon which his pleading is based. (21 Ency. Pl. & Pr. 649-652; 23 Cyc. 798, 816, 817; Truess v. Kansas City (Mo.), 90 S.W. 1029; McConey v. Wallace, 22 Mo.App. 377; Stabenhorst v. Wolff, 65 N.Y. 596; Larrison v. Pollumous, 39 N. J. Eq. 303; Mfg. Co. v. Mfg. Co., 61 N.W. 1024.)

Armstrong & Brimmer, for defendant in error.

At common law a municipality could change the grade of its streets without liability for resulting damage to abutting property. (Hammond v. Harvard (Neb.), 48 N.W. 462; Gozzler v. Georgetown, 6 Wheat. 592; R. Co. v. Defiance, 167 U.S. 87; Transp. Co. v. Chicago, 9 Otto, 635; Smith v. Washington, 20 How. 148.) The constitution, however, provides that private property shall not be taken or damaged for public or private use without just compensation. (Art. I, Sec. 33.) That provision is self-executing. (Hammond v. Harvard, supra; Harmon v. Omaha, 23 N.W. 506; Harvard v. Crouch (Neb.), 66 N.W. 276; Montgomery v. Townsend (Ala.), 2 So. 155; R. Co. v. Williamson, 45 Ark. 436; Atlanta v. Green, 67 Ga. 386; Ft. Worth v. Howard (Tex.), 22 S.W. 1059; Davis v. R. Co. (Mo.), 24 S.W. 777; Law v. People, 87 Ill. 385; Householder v. Kansas City, 83 Mo. 408; Cooley's Const. Lim. (7th Ed.) 121; Freedman v. Mathews, 8 Heisk. 488; People v. Hoge, 55 Cal. 612; Hillis v. Chicago, 64 Ill. 86; Tuttle v. Bank (Ill.), 44 N.E. 985.) Under that provision the city is liable for damage caused to property by the grading of the city highways. (Hickman v. City, 23 L. R. A. 658.) The government grant of a right of way to the Union Pacific Railroad Company did not pass title to the land. (Nelson v. R. Co., 188 U.S. 108.) The...

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15 practice notes
  • Hein v. Marcante, 2166
    • United States
    • United States State Supreme Court of Wyoming
    • June 11, 1941
    ...court fairly covered the legal principles involved in the suit. Interest is not recoverable on unliquidated damages. Rawlins v. Murphy, 19 Wyo. 238. The duty of a plaintiff claiming damages, to mitigate damages, is well settled. Hay v. Long (Wash.) 139 P. 761; Taylor Jewelry Co. v. Kelley (......
  • Hashimoto v. Marathon Pipe Line Co., Nos. 87-120
    • United States
    • United States State Supreme Court of Wyoming
    • January 6, 1989
    ...Bench Canal Drainage District, 24 Wyo. 143, 156 P. 610 (1916); Jenkins v. State, 22 Wyo. 34, 134 P. 260 (1913); City of Rawlins v. Murphy, 19 Wyo. 238, 115 P. 436 (1911); Pointer v. Jones, 15 Wyo. 1, 85 P. 1050 (1906); Lewis v. England, 14 Wyo. 540, 85 P. 1049 (1906); Matthews v. Nefsy, 13 ......
  • Yellowstone Sheep Co. v. Diamond Dot Live Stock Co., 1661
    • United States
    • United States State Supreme Court of Wyoming
    • March 31, 1931
    ...v. Weiss, 27 Wyo. 262. The court erred in allowing interest on unliquidated damages. Kuhn v. McKay, 7 Wyo. 42; City of Rawlins v. Murphy, 19 Wyo. 238, 253; Wyo. Cen. Irr. Co. v. La Porte, 26 Wyo. 249. The judgment of the court was contrary to the evidence and contrary to law. The court erre......
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...not review judgments rendered on conflicting evidence. (Boatman v. Miles, 199 P. 933; Slothower v. Hunter, 15 Wyo. 189; City v. Murphy, 19 Wyo. 238; Riordan v. Horton, 16 Wyo. 363; Kimball Co. v. Payne, 9 Wyo. 441.) Tender of a deed of conveyance by vendor must be shown before action for re......
  • Request a trial to view additional results
15 cases
  • Hein v. Marcante, 2166
    • United States
    • United States State Supreme Court of Wyoming
    • June 11, 1941
    ...court fairly covered the legal principles involved in the suit. Interest is not recoverable on unliquidated damages. Rawlins v. Murphy, 19 Wyo. 238. The duty of a plaintiff claiming damages, to mitigate damages, is well settled. Hay v. Long (Wash.) 139 P. 761; Taylor Jewelry Co. v. Kelley (......
  • Hashimoto v. Marathon Pipe Line Co., Nos. 87-120
    • United States
    • United States State Supreme Court of Wyoming
    • January 6, 1989
    ...Bench Canal Drainage District, 24 Wyo. 143, 156 P. 610 (1916); Jenkins v. State, 22 Wyo. 34, 134 P. 260 (1913); City of Rawlins v. Murphy, 19 Wyo. 238, 115 P. 436 (1911); Pointer v. Jones, 15 Wyo. 1, 85 P. 1050 (1906); Lewis v. England, 14 Wyo. 540, 85 P. 1049 (1906); Matthews v. Nefsy, 13 ......
  • Yellowstone Sheep Co. v. Diamond Dot Live Stock Co., 1661
    • United States
    • United States State Supreme Court of Wyoming
    • March 31, 1931
    ...v. Weiss, 27 Wyo. 262. The court erred in allowing interest on unliquidated damages. Kuhn v. McKay, 7 Wyo. 42; City of Rawlins v. Murphy, 19 Wyo. 238, 253; Wyo. Cen. Irr. Co. v. La Porte, 26 Wyo. 249. The judgment of the court was contrary to the evidence and contrary to law. The court erre......
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...not review judgments rendered on conflicting evidence. (Boatman v. Miles, 199 P. 933; Slothower v. Hunter, 15 Wyo. 189; City v. Murphy, 19 Wyo. 238; Riordan v. Horton, 16 Wyo. 363; Kimball Co. v. Payne, 9 Wyo. 441.) Tender of a deed of conveyance by vendor must be shown before action for re......
  • Request a trial to view additional results

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