City of Tulsa v. Hindman

• Decision Date: 22 November 1927
• Docket Number: Case Number: 17698
• Citation: 261 P. 910,128 Okla. 169,1927 OK 424
• Parties: CITY OF TULSA v. HINDMAN.
• Court: Oklahoma Supreme Court

1927 OK 424

261 P. 910

128 Okla. 169

CITY OF TULSA v. HINDMAN.

Case Number: 17698

Supreme Court of Oklahoma

Decided: November 22, 1927

Syllabus

¶0 Eminent Domain--Liability of City to Abutting Landowner for Damages from Widening Street so as to Do Away With Sidewalk.

Where a city widens or opens a street for automobile and motor truck traffic to its entire width, thereby consuming all space theretofore assigned and set apart for sidewalks or footroads, it is liable to abutting property owners for any consequential damages resulting to such property. The damage is the depreciation in the market value of the property.

Commissioners' Opinion, Division No. 2.

Error from District Court, Tulsa County; Z. I. J. Holt, Judge.

Action by Adesta F. Hindman against the City of Tulsa for damages to property by reason of widening a street and abolishing sidewalk space. Judgment for plaintiff, and defendant appeals. Affirmed.

H. O. Bland and Harry L. S. Halley, for plaintiff in error.

Poe & Lundy and R. E. Morgan, for defendant in error.

HALL, C.

¶1 This was an action by Adesta F. Hindman against the city of Tulsa, for consequential damages resulting from the action of the city of Tulsa in paving one of its thoroughfares, Eleventh street, the entire width of the street, wiping out what had been formerly set aside and assigned for purposes of sidewalk and parking, and extending the paving up to approximately 1.4 feet from one apartment house and up to 9.4 feet of another, both owned and operated by the plaintiff. These houses abutted Eleventh street only latterly, fronting in opposite directions on streets practically at right angles with Eleventh street. Plaintiff also owned a garage used by the tenants in both apartment houses; the means of approach to it was on Eleventh street, and the paving extended to within 1.05 feet of the front of this garage.

¶2 Plaintiff asked for $ 10,000 damages for actual depreciation of the market value of her property. A jury was waived and the case tried to the court, who awarded plaintiff the sum of $ 2,500 in damages against the city.

¶3 The evidence clearly shows that there was no discriminative action against the plaintiff or any other person or group of persons residing in the neighborhood of plaintiff or along Eleventh street. It might properly be said that there was no discrimination other than the mere fact of the abolition of all parking and all the sidewalk space along this street, and appropriating same to the use of motor vehicles. The evidence shows that Eleventh street was one of the main arteries of traffic for motor vehicles passing in and out of this city; and that the city commissioners thought it proper, and that it would best subserve the public interest by widening this street, for this character of traffic, to its entire width, 56 feet.

¶4 In deciding cases of this nature, courts are confronted with two main difficulties: First. No general statement of the law has ever been laid down, and perhaps no rule can be formulated, which will apply to any considerable number of cases where a municipality is sought to be charged with legal liability for consequential injuries to adjoining or neighboring property. Second. While the numerous cases on the subject may not be in terms conflicting, but the borderland in nearly all of them is so near, and the dividing line between the zone, where nonliability ceases and legal liability takes hold, is so obscure that the courts themselves, while not expressing a doubt as to the security of their respective positions, nevertheless, in many cases, have used language in their discussions which in a manner has weakened their positions. The very nature of the subject-matter is responsible for that result. Therefore, just what injuries to property, or those things causing its depreciation, which are not actionable because shared by the community as a whole, because they are injuries "in kind" instead of "in degree", we will not discuss except briefly to illustrate the general principles of legal liability. This case presents no complex problem.

¶5 The question presented here is whether or not a city is liable to an abutting property owner for the destruction or usurpation of a passageway or footway, ordinarily known as a sidewalk, either in front of or beside complainant's house, when this passageway is obstructed only to the extent of converting it into an open street for automobile and motor truck traffic. And before answering the question, to restrict it to the particular subject-matter, can such be done without adequate compensation for all resulting injuries to the property, when this street, for automobile and motor truck traffic, is extended up to 18 inches of one of plaintiff's buildings intended for habitation or business? We think not. The very question itself suggests the answer.

¶6 Under our law (section 24, art. 2 of our Constitution), damages to property much nearer the border line than the present case have never been denied. It has been held in this state, and seems now to be the settled law everywhere under statutes or constitutional provisions similar to ours, that a property owner can recover damages for the mere changing of the grade, either leaving his property below the street or above the street. Edwards v. Thrash, 26 Okla. 472, 109 P. 832; City of Mangum v. Todd, 42 Okla. 343, 141 P. 266, L. R. A. 1915A, 382; 10 R. C. L. 171.

¶7 Many of the cases, in denying relief against a municipality in certain cases where the legal discretion apparently might be exercised in either direction, have denied relief on the principle of "damnum absque injuria," and have cited as illustrations of this the erection of a jail, pesthouse, hospital, cemetery, and the like, at or near the property affected, although such establishments necessarily result in a depreciation of neighboring property. Even in cases of this nature our court has exploded that rule in the case of Oklahoma City v. Vetter, 72 Okla. 196, 179 P. 473, 4 A. L. R. 1009. I% ' '* the court held that one's property could not be destroyed or impaired by the municipal authorities in establishing or authorizing a pesthouse or hospital adjacent to one's property without answering in damages to the owners thereof. Many other states, having constitutional provisions similar to ours, or either treating the matter as fundamental, are committed to the same doctrine. Jacobs v. City of Seattle, 93 Wash. 171, 160 P. 299, L. R. A. 1917B, 329. In that case a garbage incinerator was established near plaintiff's property.

¶8 The rule applicable here is well stated by the Supreme Court of Georgia in Pause v. City of Atlanta, 98 Ga. 92, 26 S.E. 489, 58 A. S. R. 290, Georgia having a constitutional provision similar to ours. In that case the court allowed, damages to an abutting property owner for the construction, by the municipal authorities, of a public bridge for public traffic in a street which resulted in permanent injury to the property of an abutting lot owner. In that case her right in the property was only a lease; her power of ingress and egress was not destroyed, but was made more inconvenient and hazardous. The court granted her relief. The rule formulated in that opinion is contained in the following quotation from the opinion:

"The rule seems to be deducible from the decisions of the courts of other states, construing constitutional provisions similar to our own, that if the owner of property, because of the permanent physical improvement itself, suffers damages by reason of the permanent diminution in the value of his property or estate, as distinguished from mere personal inconvenience, he has a right to action for such damages; nor is it material whether the property damaged abuts directly upon the improvement, or is distant therefrom."

¶9 The North Carolina Supreme Court, in the case of White...