Eby v. City of Lewistown

• Citation: 173 P. 1163,55 Mont. 113
• Decision Date: 25 June 1918
• Docket Number: 3914.
• Parties: EBY v. CITY OF LEWISTOWN.
• Court: United States State Supreme Court of Montana

173 P. 1163

55 Mont. 113

EBY v. CITY OF LEWISTOWN.

No. 3914.

Supreme Court of Montana

June 25, 1918

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Action by J. M. Eby against the City of Lewistown. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Chas J. Marshall and Oscar O. Mueller, both of Lewistown, for appellant.

Belden & De Kalb, of Lewistown, for respondent.

BRANTLY C.J.

On May 11, 1914, the council of the city of Lewistown, Fergus county, under the provisions of the act of the Legislature entitled "An act relating to special improvement districts in cities and towns," etc., approved March 14 1913 (Laws 1913, c. 89), passed a resolution of intention to create a special improvement district for the purpose of excavating, filling, and grading Janeaux street, one of the principal streets of the city, and the intersections thereof (excluding the intersection of First avenue and Janeaux street), between the southwesterly boundary line of Sixth avenue and the northeasterly boundary line of Dawes street. After notice had been given as required by the act, such proceedings were had that the district was created by resolution passed on June 8th; it being designated as special improvement paving district No. 17. On July 1st a contract was let by the mayor and the city clerk, under the direction of the city council, to J. C. Maguire for the doing of the work in accordance with plans and specifications which had been prepared by the council, to conform to the grade as established by ordinance designated as Ordinance No. 293 enacted on June 14th. The work was at once begun, and continued to completion on September 15th.

The plaintiff is the owner of lots 4, 5, and 6, and fractional lot 7, in block N-16, of the original town site of Lewistown and fractional lot 3 of the Morase addition thereto. Fractional lots 7 and 3 together constitute a lot of the same area as the other three. For present purposes, the three lots and the two fractional lots may be considered as four lots. They are each 50 feet in width by 90 feet in depth, and constitute a quadrangular area with a frontage on Janeaux street of 200 feet, extending back to an alley running parallel with it through the block. The quadrangle is bounded on the northeasterly side by Fifth avenue. Plaintiff's lots therefore lie between Fifth and Sixth avenues. On the front of lot 4, facing Janeaux street, is a brick building used as a plumber's shop. This extends several feet over on lot 5. On the rear of lot 4 there is a small residence which fronts on Fifth avenue. On lot 6 there is also a small residence. There are no improvements on lot 7. Prior to the passage of the ordinance establishing the grade, Janeaux street had followed the contour of the natural surface, except that in front of lot 7, and lots between it and Sixth avenue, a narrow fill had been made by dumping waste material therein, in order to render more convenient the approach to Sixth avenue to the southwest, the general level of which was about 10 feet above that of all the plaintiff's lots. The change of grade effected by the ordinance, except as noted, was from the natural contour to a uniform grade from the intersection of Janeaux street and Fifth avenue, along the front of the entire block, to the intersection of the former with Sixth avenue.

This action was brought to recover damages for injury claimed to have been caused to plaintiff's lots by the change of grade. It is alleged in the complaint:

"V. That between the 11th day of May, A. D. 1914, and the 5th day of October, A. D. 1914, the defendant wrongfully and unlawfully, and without plaintiff's consent, and against his will, and without taking any steps whatsoever to have appraised, or to pay, the damages done to plaintiff's said property and accruing to plaintiff, and without any offer to pay plaintiff therefor, defendant caused the grade of Janeaux street, upon which said lots fronted as aforesaid, to be greatly raised, changed, and altered, thereby placing the said property and the said buildings and permanent structures thereon far below the surface grade of said Janeaux street, whereby plaintiff's property and said buildings and structures were and are permanently injured, damaged, rendered inaccessible, inconvenient, and undesirable for the purposes for which they were and are designed, and necessitating upon the part of the plaintiff a large expenditure of money and loss of time in placing the said buildings on the grade of said street and filling and adjusting the said lots to such grade, to plaintiff's damage in the sum of $5,000."

In its answer the defendant admits that it caused the grade of Janeaux street to be raised, changed, and altered as alleged, but denies that plaintiff's property was thereby damaged in any amount whatever. As a special defense in bar of the action, the answer then sets forth all the proceedings resulting in the creation of special improvement paving district No. 17. It then alleges, in substance, that the work was done under a contract let by the city to Maguire; that it was done strictly in accordance with the contract, to conform to the grade established by the ordinance; that the plaintiff wholly failed and neglected, during 60 days after the contract was let, to file a written claim for damages which would be caused to his said lots, as provided by section 13 of chapter 89 of the act referred to above; that by failure to file his claim within the time limited by the act for that purpose he waived his right to claim damages; and that therefore his right to maintain the action is barred by the provisions of said section. On motion of plaintiff the court struck out all that portion of the special defense alleging waiver, leaving to be tried only the issues as to the fact of injury and the amount of damages to which plaintiff might be entitled. The plaintiff had verdict and judgment for $2,500. The defendant has appealed from the judgment.

In their brief, counsel for plaintiff object to the consideration of the appeal on the merits, and move for a dismissal of it on the ground that the record does not contain a copy of the judgment roll, made up and certified as such. The record is substantially in the same form as was that before us in Stokes v. Long, 52 Mont. 470, 159 P. 28. In disposing of the second ground of the motion to dismiss the appeal in that case, we held that the record was sufficient to meet all the requirements of section 6799 of the Revised Codes. The motion is therefore denied.

The contention is made that the court erred in striking out the latter portion of defendant's special defense. Section 13 of the act is as follows:

"At any time within sixty days from the date of the award of contract any owner or other person, having any interest in any lot or land liable to assessment, who claims that any of the previous acts or proceedings, relating to said improvements, are irregular, defective, erroneous, or faulty, or that his property will be damaged by the making of any of the improvements in the manner contemplated, may file with the city clerk a written notice, specifying in what respect said acts or proceedings are irregular, defective, erroneous, or faulty, or in what manner and to what extent his property will be damaged by the making of said improvements. Said notice shall state that it is made in pursuance of this section. All objections to any act or proceeding or in relation to the making of said improvements, not made in writing, and in the manner and at the time aforesaid, and all claims for damages therefor, shall be waived by such property owner: Provided, the notice of the passage of the resolution of intention has been actually published and the notices of improvements posted, as provided in this act."

By a reading of this act, giving special attention to section 19, it becomes apparent that, so far as it relates to damages claimed by a property owner in an improvement district for injury to his property by a change of grade, the Legislature had in view two purposes: (1) To debar such owner from any claim for compensation for damage to his property which he anticipates will be wrought by a proposed improvement, if he fails to ascertain the amount and extent of it, and to give notice in writing thereof to the council within the specified time; and (2) if notice is given, and he is awarded damages, to enable the council to add the amount of them to the cost of making the improvement when it comes to spread the assessment upon the property included in the district. It is not disclosed by anything in the record upon what theory the trial court struck out the portion of the special defense.

Counsel for the plaintiff insist that its action can be upheld, either on the ground that section 13 is void as being repugnant to section 14 of article 3 of the state Constitution, or that it is void because violative of section 29 of the same article of that instrument. The first of these provisions is:

"Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner."

To uphold the court's action on this ground, counsel argue that this provision of the Constitution imposes upon the agency of the state, which may be clothed with authority to take or damage private property for public use, the duty (a) to ascertain upon its own initiative what will be just compensation for the property to be taken or damaged in order that a particular public purpose may be served, and (b) to pay such compensation to the owner or tender it to him, before the taking or damaging occurs, and that section 13, supra, is clearly repugnant to it in imposing upon the owner...