Dorset v. Town Of Henderson

• Decision Date: 14 October 1908
• Citation: 62 S.E. 547,148 N.C. 423
• Court: North Carolina Supreme Court
• Parties: DORSET. v. TOWN OF HENDERSON.

62 S.E. 547

148 N.C. 423

DORSET.

v.TOWN OF HENDERSON.

Supreme Court of North Carolina.

Oct. 14, 1908.

1. Municipal Corporations — Change op Grade of Streets—Ratification by Municipal Authorities—Effect.

Where municipal authorities authorize and ratify the act of the street committee in changing the grade of a street, the act becomes the act of the municipality; ratification being equivalent to previous authority.

2. Same—Judicial Review.

Courts are precluded from inquiring into

the advisability of a change of grade of streets of a municipality; the public use being the dominant interest, of which the municipal authorities are the exclusive judges.

3. Same — Power to Change Grade of Streets—Statutes.

Under Charter of Henderson (Laws 1889, p. 1002, c. 241) § 62, giving the commissioners exclusive power to change the grade of streets, and Revisal 1905, § 2930, requiring the board of commissioners to keep and repair the streets as they deem best, etc., the town of Henderson may change the grade of its streets.

4. Same—Damages to Abutting Property— Liability.

A municipal corporation, exercising, without negligence or wanton purpose to injure abutting property, its authority to change the grade of its streets, is not liable for consequential damages to abutting property, unless a constitutional or statutory provision allows compensation therefor.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 925-928.]

Appeal from Superior Court, Vance County; Cooke, Judge.

Action by Melville Dorsey against the town of Henderson. From a judgment for plaintiff, defendant appeals. Reversed.

This is a civil action to recover damages of the defendant for alleged injury to the plaintiff's property, consisting of a building used for stores, situated on Garnett street in said town, caused by the grading and lowering of the sidewalk and street in front of the same. The action was tried at May term, 1908, of the superior court of Vance county, his honor Judge Cooke presiding. The following issues were submitted to the jury: "(1) Did defendant, in grading and constructing the sidewalk in front of plaintiff's store, grade and construct the same in a negligent, unlawful, wanton, or improper manner? Ans. Yes. (2) If yes, what damage is plaintiff entitled to recover? Ans. $1,500." At the close of the evidence the defendant moved to nonsuit the plaintiff, upon the ground (1) that the defendant had the lawful authority to grade the sidewalk and street in front of plaintiff's property; (2) that there is no evidence that the work was done in a negligent, wanton, or improper manner. The court overruled the motion, and defendant excepted. Upon the coming in of the verdict his honor rendered judgment for plaintiff, and defendant appealed.

T. T. Hicks, A. C. Zollicoffer, and T. M. Pittman, for appellant.

F. S. Spruill, A. J. Harris, Bennett Perry, and J. C. Kittrell, for appellee.

BROWN, J. The evidence tends to prove that the plaintiff during the year 1885 erected on Garnett street, in the town of Henderson, a two-story brick building abutting on the sidewalk. At that time Garnett street had been opened and, with the sidewalk, was in use by the public. In 1903 the municipal authorities, for the benefit and improvement of the town, inaugurated a scheme for the paving and improvement of the streets and the construction of a sewerage system. They employed a competent engineer, who, with his assistant engineer, drew up and submitted the plans and specifications of the work. The plans as originally submitted by the principal engineer, Mr. Ludlow, did not contemplate lowering the grade in front of plaintiff's store, but to obviate the necessity for it by means of a deep curb and a step. Upon further investigation, consideration, and advice the town authorities decided to grade the sidewalk on Garnett street on a level incline with the curbing, and do away with the step, etc., as originally called for in the Ludlow plans. This necessitated lowering the grade some 16 inches, according to plaintiff's evidence, at the door of his store, so as to require the construction of steps from the sidewalk to the doorsill, which injures the value of his building as a place of business. The question presented on this appeal, and argued with much learning and ability by counsel on both sides, is the right of a per-son owning a building abutting on a public street to recover damages for the diminution in the value of his property caused by the change in the grade of the street, in the absence of any negligence in the construction of the work.

The learned counsel for the plaintiff, Mr. Spruill, in his argument, as well as in the brief, admitted that this question has been "apparently decided" by this court adverse to the contention of the plaintiff. The law has been so held by this court in a number of cases, and in such explicit terms that to adopt the plaintiff's theories would be to overrule a long line of well-established precedents. The question was first considered by this court in 1848, and exhaustively discussed by Judge Pearson, and the conclusion reached that, where a municipal corporation has authority to grade its streets, it is not liable for consequential damage, unless the work was done in an unskillful and incautious manner. Meares v. Wilmington, 31 N. C. 73, 49 Am. Dec. 412. This case has been approved and followed in many adjudications of this court in more recent years. Salisbury v. Railroad, 91 N. C. 490; Wright v. Wilmington, 92 N. C. 160; Tate v. Greensboro, 114 N. C. 397. 19 S. E. 767, 24 L. R. A. 671; Brown v. Electric Company, 138 N. C. 537, 51 S. E. 62, 69 L. R. A. 631, 107 Am. St. Rep. 554; Jones v. Henderson, 60 S. E. 894; Ward v. Commissioners, 146 N. C. 538, 60 S. E. 418; Small v. Edenton, 146 N. C. 527, 60 S. E. 413. In Thomassen v. Railroad the subject is referred to as "the settled doctrine of this state." 142 N. C. 307, 55 S. E. 201. The adjudications of this court are supported by abundant authority elsewhere. Judge Dillon says: "Authority to establish grades for streets and to grade them involves the right to make changes in the surface of the ground, which may injuriously affect the adjacent property owners; but, where the power is not exceeded, there is no liability, unless created by special constitutional provision or by statute (and then only in the mode and to the extent provided), for the consequences resulting from the powers being exercised and...