City of Vicksburg v. Herman

• Decision Date: 29 October 1894
• Citation: 16 So. 434,72 Miss. 211
• Court: Mississippi Supreme Court
• Parties: CITY OF VICKSBURG v. DAVID HERMAN

16 So. 434

72 Miss. 211

CITY OF VICKSBURG v. DAVID HERMAN

Supreme Court of Mississippi

October 29, 1894

FROM the circuit court of Warren county. HON. JOHN D. GILLAND Judge.

The opinion states the case.

Affirmed.

Booth &amp Anderson, for appellant.

Before the adoption of the constitution of 1890, which, by § 17, provides that private property shall not be taken or damaged for public use except on due compensation, it was well settled that a municipality was not liable to property holders for consequential damages to their property caused by a change in the grade of its streets, so long as it did not invade private rights and the work was carefully done. Dillon on Mun. Corp., § 987. Does the insertion in the new constitution of the word "damaged" change its rule? Mr. Dillon thinks not, especially in reference to a grade line for the first time established. While appellee purchased his property in 1883, it cannot be said that he purchased with a view to any grade, as the grade, though established had never been actually made. We admit that if the street had been actually graded, and property holders had improved the lots in accordance therewith, and the city should afterwards change the grade, a case for the application of the new constitution would be presented.

Gibson & Henry, for appellee.

It is too late to quarrel with the policy of our law that compels compensation to the owner of private property damaged for public use. Constitution 1890, § 17. The term ''damaged" had a fixed legal meaning at the time of its insertion in the organic law; the word must be understood in the light of the legal construction of those courts theretofore passing upon it, and this makes irrelevant the private Opinion expressed by Dillon in his valuable work. See 125 U.S. 161; 78 Mo. 107; 119 Penn., 541; 16 W.Va. 402; 77 Ill. 194; 67 Ga. 386; 80 Ala. 489; 16 F. 444.

Appellee bought his property with reference to an established grade, so that the very authorities relied on by appellant are against its proposition. See 96 Penn., 331; 150 Ib., 589; 25 W.Va. 226; 94 Mo. 574; 115 Ib., 258; 31 Nev. 635.

The verdict is not excessive. The evidence shows the depreciation in value of at least one-third. This alone would give more than the modest verdict awarded.

OPINION

WOODS, J.

This is an action brought by the appellee against appellant for the recovery of consequential damages for alleged injuries resulting to certain lots in the City of Vicksburg by reason of the grading of Belmont and Monroe streets, in that city, in the year 1893, upon which said lots abutted. To all the counts of the declaration filed, the appellant demurred, and the demurrer being overruled, the appellant then answered with the general issue. Trial was had upon this issue, resulting in a verdict and judgment thereon for $ 2,000 in favor of appellee; and from this judgment the present appeal is prosecuted.

The facts appearing in the evidence in the record are few and undisputed, except as to the amount of the alleged damages. The verdict of the jury must be held conclusive as to this controverted point, and we dismiss it from our consideration. Substantially, the other evidence may be thus stated, viz.: Herman, the appellee, in the years 1881 and 1883, became the owner of lots 2 and 3, square B, Ryan's survey, and lots 52 and 53 and 54 and 55, Smedes' survey, of the city of Vicksburg; lots 2 and 3, Ryan's survey, fronting fifty feet each on Belmont street, and having no entrances or exits except on Belmont street; lot 52, Smedes' survey, being on the corner of Belmont and Monroe streets, and lots 53, 54 and 55, of the same survey, fronting on the latter street only. In the year 1884, a grade was established on Belmont street, such grade being, as established, about on the surface level of that street as it then was in front of appellee's lots on Belmont street. In the year 1893, a new grade was established for Belmont street, and the street actually reduced to the changed grade, whereby the level of the street was cutdown along the entire front of appellee's lots to a depth of from fifteen to eighteen feet in front of lots 2 and 3, and to a depth of from five to ten feet in front of lot 52, thereby destroying entrance and exit to the residences of the two first named lots. Between the dates of appellee's acquisition of title to the lots and the cutting down of the street to the grade line of 1893, large sums of money had been expended in the erection of valuable dwelling houses on lots 2 and 3, and in the improvement of the premises generally.

It will at once be seen, now, that the appellee's supposed right to recovery rests upon and springs out of the seventeenth section of the constitution of 1890, which declares that "private property shall not be taken or damaged for public use, except on due compensation being first made, to the owner or owners thereof, in a manner to be prescribed by law." The italicized words above, "or damaged," appear in no former constitution of the state, and must receive such construction as will effectuate the object designed to be attained by their insertion in the fundamental law.

Under our former constitutions, which provided only for due compensation to the owner for taking private property for public use, it had been long held that, to entitle the private owner to compensation for the taking of his property for public use, there must be an invasion of the Property, a trespass upon it, and an appropriation of it to public use. There must have been, formerly, that which amounted to a deprivation of the owner of his property; and merely consequential injuries, resulting from the loss or impairment of some rights incident to the use or enjoyment, there being no invasion of the property itself, were not covered by the constitutional prohibition. Such was the law as understood and applied before the incorporation in the constitution of the new words we have referred to. The words are without limitation or qualification. They embrace within their inhibition all those attempting to convert private property to public use, artificial as well as natural persons, municipal and other corporations alike; and they cover all damages of whatever character. We are not to suppose that the framers of the new constitution employed these additional words, all-embracing in their signification and far-reaching in their application, aimlessly and unadvisedly. As the law theretofore was, the taking of private property for public use without due compensation to the owner was inhibited, and the rights of the private person sufficiently guarded. But we are bound to suppose, that, in the judgment of the framers of the new constitution, wrongs were committed by those exercising the right of eminent domain for which there was no legal redress, and hardships endured by the citizen for which there was no remedy. The citizen was already protected against the taking of his property for public use without due compensation first made, but there was no protection against injuries to the rights of the owner of private property less than the appropriation of the property itself. To have inserted the words "or damaged" in the new constitution, to cover cases already perfectly provided for in the old constitution, would have been utterly meaningless. The citizen must now be held, under this new provision of our fundamental law, to be entitled to due compensation for, not the taking, only, of his property for public use, but for all damages to his property that may result from works for public use. He is now secured in his property, and his use and enjoyment of his property. The burdens formerly borne by the citizen, resulting from damage done his property by a diminution or destruction of his right to use and enjoy his own, were designed by this new constitutional rule to be placed upon those by whose action the diminution or destruction was wrought.

With the wisdom of the new rule we need not concern ourselves. It may be, as is intimated by counsel for appellant, that the imposition of...