City of Rawlins v. Jungquist

• Citation: 16 Wyo. 403,94 P. 464
• Parties: CITY OF RAWLINS v. JUNGQUIST
• Decision Date: 21 March 1908
• Court: United States State Supreme Court of Wyoming

94 P. 464

16 Wyo. 403

CITY OF RAWLINS v. JUNGQUIST

Supreme Court of Wyoming

March 21, 1908

Rehearing Denied June 23, 1908, Reported at: 16 Wyo. 403 at 426.

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

The material facts are stated in the opinion.

Reversed.

Charles E. Blydenburgh, for plaintiff in error.

A city is not liable for damages to abutting property by change in the grade of streets in the absence of some statute or constitutional provision imposing such liability. (2 Dill Mun. Corp. (4th Ed.), 1214.) Where a constitutional provision is adopted such as Section 33 of Article I of the Wyoming Constitution, providing that private property shall not be taken or damaged for public or private use without compensation, a liability is usually held to be imposed. But the municipality has the power to grade and improve streets which is not exhausted by its first exercise. And it is held that the city is not liable for the first change of grade, or bringing the streets to the first grade established, though there are contrary decisions. (Dill. Mun. Corp., 1236-1237; O'Donnell v. White, 24 R.I. 483.) Also that where a liability exists, a property owner cannot recover where he consents to or does the grading himself, or where he had made improvements after the grade was established, although the surface on actual change did not conform to the established grade. (Jeffersonville v. Myers, 28 N.E. 999; Burlington v. Gilbert, 51 La. 356; Denver v. Vernia, 8 Colo. 399; Davis v. Ry. Co., 24 S.W. 777; Klinkenbeard v. St. Joseph, 27 S.W. 521; Wilber v. Fort Dodge, 90 N.W. 186; Groff v. Philadelphia, 24 A. 1048; Maghee v. Avondale, 31 Wkly. L. Bul., 163; Neubert v. Toledo, 2 O. Dec., 148; Owens v. Milwaukee, 47 Wis. 461.) And that in no event is the city liable for the work done in grading sidewalks or for destruction of sidewalks or for laying sidewalks. (Shelton v. Birmingham, 24 A. 978; Lewis v. New Brittain, 52 Conn. 568.) That conformation of inequalities of surface to grade is not a change of grade. (Comiskey v. Suffern, 22 N.E. 420; Omaha v. Williams, 71 N.W. 970.)

The acceptance by the plaintiff of the amount allowed by the city upon his presented bill for the damages claimed and here sued for amounted to a compromise of the entire demand, and a further recovery is not permissible. (Lathrop v. Evans, 45 P. 236; Sewell v. Mead, 52 N.W. 227; Board v. Seawell, 41 P. 592; Wapello Co. v. Sinnamon, 1 G. Greene, 413; Fulton v. Monona Co., 47 Iowa 622; Brick v. Plymouth Co., 63 Iowa 463; Bradley v. Delaware Co., 57 Iowa 552; U. S. v. Adams, 7 Wall., 463; U. S. v. Child, 12 Wall., 232; Davey v. Big Rapids, 48 N.W. 178; Browne v. Board (Mich.), 85 N.W. 745; Sharp v. Mauston, 66 N.W. 803; People v. Board, 52 N.Y. 89; Perry v. Cheboygan, 21 N.W. 333; Board v. Morgan, 65 P. 41; Murphy v. U.S. 14 Otto, 464 (5 N.W. 176); 17 Am. Dec., 118; Alice v. Billing, 2 Cush., 26; Fisher v. Hay, 5 Am. Dec., 626; 8 Cyc., 533; Harding v. County, 7 N.W. 466; Hodge v. Hodge, 26 Am. Dec., 52; Vosburgh v. Teator, 38 N.Y. 561; Powell v. Jones, 44 Barb., 521; Hunter v. Com'rs., 62 A. 213; Morse v. Monroe, 30 Ga. 630; Frick v. Price, 66 N.W. 834; Oglesby v. Attrill, 105 U.S. 605; Comstock v. U.S. 9 Ct. Cl., 141; Taylor v. Patrick, 4 Ky. 168; Adele v. Prudhommo, 16 La. Ann., 343; Tard v. Tarry, 26 Mo.App. 598.) The evidence does not show certain items only were allowed. The allowance was on account of the entire claim.

Interest on the damages found was improperly allowed for two reasons. First, there was no prayer for interest, and, therefore, none is allowable. (R. S. 1899, Sec. 3533, Sub. 3; 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.App. 589; David v. Conrad, 1 G. Greene, 336; Krause v. Hampton, 11 Iowa 457; Green v. Dunn, 5 Kan. 254; Shepard v. Pratt, 16 Kan. 209; Graves v. Adm'r., 4 Ky. L. R., 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, 12 Tex. Civ. App. 256; Adams Exp. Co. v. Milton, 74 Ky. (11 Bush.), 49; Shockley v. Fischer, 21 Mo.App. 551; Denise v. Swett, 68 Hun, 188.) Second, interest is not generally recoverable upon unliquidated demands. (22 Cyc., 512, and note.) There is an exception to this rule, viz.: that where an unliquidated demand is capable of and is ascertainable by mere computation it will bear interest, but where it requires evidence and a trial to ascertain the amount, then interest is not allowed, especially if the evidence is conflicting. The matter of interest is purely statutory. By no construction of the statutes on the subject can they be made applicable to a claim for damages caused by a change of grade. (Hawley v. Baker, 5 Colo. 118; Palmer v. Murray, 21 P. 127.)

L. E. Armstrong, for defendant in error.

The liability of a municipal corporation for damages caused to abutting property through a change in the grade of streets is clear under our constitution. (Art. 1, Sec. 33; Pumpelly v. Canal Co., 13 Wall., 166; 2 Abb. Mun. Corp., 1837; R. R. Co. v. Ayres, 106 Ill. 511; Chicago v. Taylor, 125 U.S. 161; Mayor, &c., v. Herman, 16 So. 434; St. Louis v. Lang, 33 S.W. 54; Ogden v. Phila., 22 A. 694; O'Brien v. Phila., 24 A. 1047.) There seems to be no reason for distinguishing between damages occasioned under an ordinance changing the grade, and those caused under an ordinance which for the first time fixes the grade. (Bloomington v. Pollock, 31 N.E. 146.)

The evidence does not sustain the proposition that the allowance and acceptance of a part of plaintiff's claim was a compromise. There was no mutuality of agreement or understanding necessary to a compromise. (Oil Co. v. Wilson, 56 S.W. 429; Jennison v. Stone, 33 Mich. 99; Barnawell v. Threadgill, 56 N. C., 50; Norris v. Slaughter, 3 Greene, 116; Luce v. Ins. Co., 15 Fed. Cas. No. 8589; Lampkins v. R. Co., 8 So., 530; Carver v. Louthain, 38 Ind. 530.)

The general rule is that it is sufficient if the party to whom an offer of compromise is made clearly gives evidence of his intention to accept an offer as a settlement of the disputed claim; such intention may be shown either by word or letter, or it may be constructive or implied from the acts of the party to whom the offer was made, as where he receives and retains the amount which to his knowledge was offered on condition of its being accepted as a compromise; but, in the case at bar, the attention of the defendant in error was never called to the fact that the money which was paid to him was in any sense a compromise. It was not accepted for damage done by lowering the grade, but in payment for the destruction of the sidewalks and for the relaying of the same, shown by the fact that the amount allowed is the amount of the items of the bill relating to the sidewalks. (Fuller v. Kemp, 33 N.E. 1034.)

A compromise must be established by a preponderance of the evidence. (Bank v. Galvin, 45 N.E. 353; Grove v. Bush, 53 N.W. 88.) An examination of the bill in question will clearly show that the subject of damage for change of grade was never entered into, nor included in the allowance made by the board. Jungquist received the warrant knowing that the board had considered and acted upon but three items of his bill, none of which pertained to the damage to his property by virtue of the grading, but only for the payment for the destruction of the material in his sidewalks, and for the expense of relaying the same. There was not, therefore, any allowance and acceptance of payment of a part in settlement or satisfaction of the entire claim. (Ins. Co. v. Siebert, 56 N.E. 686; Lambkin v. R. R. Co., 8 So., 530.) A transaction to amount to a compromise must be agreed on and consented to. It must be shown that there was a full and complete settlement of all matters and things in controversy. (Forbes v. Petty, 37 Neb. 899.)

The allegation of the answer on the subject of settlement is a mere legal conclusion, and does not constitute a defense. Testimony in support of it was admitted erroneously over plaintiff's objection. And the reply did not aid the defective answer. (West v. Cameron (Kan.), 18 P. 894; Ry. Co. v. Shepherd (Neb.), 85 N.W. 189; March v. Marshall, 53 P. 396; Renihan v. Wright, 9 L. R. A.; Marshall v. Mathers (Ia.), 3 N.W. 120.) It is not too late to question the sufficiency of the answer, since the evidence offered under it was timely objected to. (Bank v. Smith, 11 Wheat., 171; Hurd v. Brew. Co. (Tex.), 51 S.W. 883; 57 S.W. 573; Abbott's Tr. Br. on Pl., 1281, 1279, and cases cited.)

The allowance of interest is complained of, and it is true the petition does not contain a prayer for interest. There is a difference between interest as damages and contractual interest; the proper distinction being that where interest is payable by virtue of a contract it is an integral part of the debt. (Davis v. Harrington, 35 N.E. 771; Ohio v R. Co., 6 Ohio St. 489.) But where interest is recoverable as damages, it is merely an incident of the principal debt, and follows the principal as such incident, until it is separated and set apart in some manner as a particular debt. (Washington v. Bank, 28 Am. Dec., 333; S. R. Co. v. Moravia, 61 Barb., 180.) Where interest is recoverable as damages and is a legal incident of the debt sued on, or where the allowance is required under equitable principles, interest should be allowed, although no demand is made therefor in the bill or declaration. (Lane v. Cluckauf, 27 Am. Dec., 121; Stanley v. Anderson, 65 N.W. 247; Peterson v. Mannix, 90 N.W. 210; Whitaker v. Pope, 29 F. C. No. 17528; 2 Abb. Tr Br. Pl., 1743; R. Co. v. Greathouse, 17 S.W. 834; Porter v. Russeck, 29 S.W....