Garraux v. City Council Of Greenville

• Decision Date: 24 November 1898
• Parties: GARRAUX . v. CITY COUNCIL OF GREENVILLE.
• Court: South Carolina Supreme Court

31 S.E. 597

53 S.C. 675

GARRAUX .

v.CITY COUNCIL OF GREENVILLE.

Supreme Court of South Carolina.

Nov. 24, 1898.

Constitutional Law—"Taking" Private Property—Municipal Corporations—Change of Stueet Grade—Right to Damages—Remedy— Conclusiveness.

1. Changing the grade of a street after it had been once established, and buildings erected with reference thereto, is not "a taking" of property, within Const, art. 1, § 23, providing that "private property shall not be taken * * * for public use without just compensation being first made therefor."

2. Charter of Greenville, § 30 (19 St. at Large, p. 106), providing that any person damaged by the closing, or "altering" of any street shall be compensated by the city council, requires that compensation be made for any "altering" by grading that effects a change in the structural formation of the street.

3. Charter of Greenville, § 30 (19 St. at Large, p. 106), providing that any person damaged by the closing or altering of any street shall be duly compensated by the city council, and providing that, if the party damaged and the council shall be unable to agree, the damages shall be assessed by commissioners, and saving to either party an appeal therefrom, creates an exclusive remedy for ascertaining such damages, and this though the council should refuse to appoint a commissioner, for it may be compelled to do so.

Appeal from common pleas circuit court of Greenville county; James Aldrich, Judge.

Action by E. Garraux against the city council of Greenville. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Haynsworth, Parker & Patterson, for appellant.

B. A. Morgan, for respondent.

JONES, J. This is an appeal from an order of nonsuit in an action by plaintiff, the owner of a lot abutting on a street in the city of Greenville, for damages resulting from the lowering of the grade of the street by the city council. The evidence tended to show that plaintiff, in 1878, with reference to the grade of the street then established, erected a dwelling house and other improvements on said premises, and that in 1895-96 the city council, against her protests, cut down the grade of the street lower than in 1878, thereby rendering access to her premises difficult, and depreciating the market and rental value, to her damage estimated at from $1,200 to $2,000. It appeared also by the complaint and answer that plaintiff applied to the defendant, offering to submit the question of damages to commissioners as provided in the city charter, but defendant, denying its liability, refused to appoint a commissioner.

Neither the order granting the nonsuit nor the record before us discloses the grounds upon which the nonsuit was based. As the tes timony was sufficient to carry the case to the jury, provided defendant is liable to an action for damages resulting from grading its streets without negligence, we assume the ruling was based upon the proposition that defendant is not liable to such action. Whether the defendant is so liable will depend upon whether there is any constitutional or statutory provision making the municipality liable for compensation for injury resulting from the proper exercise of its governmental powers, and whether, if any remedy is provided therefor, such remedy is exclusive.

The only provision of the constitution bearing upon this question is in article 1, § 23, where it is provided: "Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor." The great weight of authorities is to the effect that a change in the grade of a street which diminishes the value of adjacent property is not a "taking" of property, within the constitutional provision above quoted. Cooley, Const. Lim. 671. According to 2 Dill. Mun. Corp. § 990, "municipal corporations, acting under the authority conferred by the legislature to make and repair, or to grade, level, and improve, streets, if they keep within the limits of the street, and do not trespass upon or invade private property, and exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to the...