Gray v. Salt Lake City

• Decision Date: 03 February 1914
• Docket Number: 2533
• Citation: 44 Utah 204,138 P. 1177
• Court: Utah Supreme Court
• Parties: GRAY et al. v. SALT LAKE CITY

138 P. 1177

44 Utah 204

GRAY et al. v. SALT LAKE CITY

No. 2533

Supreme Court of Utah

February 3, 1914

Rehearing denied February 25, 1914.

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Mary W. Gray and another against Salt Lake City.

Judgment for plaintiffs. Defendant appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

H. J Dininny, Aaron Meyers and W. H. Folland for appellant.

W. H King and Samuel Russel for respondents.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

The plaintiffs, respondents in this court, brought this action against Salt Lake City, the appellant, to recover damages to their residence property, which, it is alleged in the complaint were caused by appellant by raising a street from its natural level as it was in front of the property in question and the adjoining properties. The city, in its answer, justified the making of the fill, and pleaded an estoppel, upon the ground that respondents had offered no objection or protest to the grading of the street, and had paid the special taxes assessed against them for that purpose. The controlling facts, briefly stated, are as follows:

In 1893 Salt Lake City, in a legal and proper manner, established a grade for First West Street, the street in question, and for a large number of other streets in said city. The records and profiles were kept on file in the engineer's office, and were kept so as to show just what the grade would be when carried into effect in front of any particular property affected by the grade as established. It was also made to appear that by examining said profiles any one interested could at any time ascertain just what fill, if any, or the cut, if any, in front of any particular property would be in case the city carried the established grade into effect. The fill in front of the property in question along the sidewalk line, in order to make the street conform to the grade aforesaid, would have been four and six-tenths feet. When the grade was established, as aforesaid, the property in question was an unimproved city lot situate at or near the center of the block between Third and Fourth North Streets on the west side of First West Street, which street runs north and south. The lot was in a sort of depression; that is, it was lower than were the lots on either side of it. The natural surface of the ground sloped or declined toward the lot in question from the south, north, and from the east, and continued to descend towards the west. The lot was improved by the owner thereof in 1904 by building thereon a brick cottage with all modern improvements. The respondents purchased the property in January or February, 1906, in practically the same condition it was left in when completed by the owner. It seems that the east margin of the street was higher than the west one, and, while the city had from time to time filled in the street somewhat in front of the property in question, yet, according to the testimony of one of the respondents, which the jury were authorized to believe, no real attempt was made to fill in the street, so far as to bring it to the established grade, until several years after they had purchased the property. In 1908 the city council modified the established grade to the extent of reducing the fill in front of the property in question from four and six-tenths feet to about two and five-tenths feet. One of the respondents testified that the fill as made on the sidewalk line immediately in front of the property was about thirty inches. We refer to this only because it is a fact. The change of grade being beneficial to the respondents, we shall not refer to that fact hereafter as having any controlling influence in the case. After the grade had been reduced as aforesaid, in 1908 and 1909, for the purpose of raising the street up to the grade, and to construct permanent sidewalks along both sides of the street, which, up to that time, were merely dirt or gravel walks, the city filled in the street to conform to the grade of 1893 as modified as before stated. There is no claim that the city acted unlawfully or negligently in grading the street; but it is claimed that in making the fill the property in question was, nevertheless, damaged; that is, it was made less desirable, and hence less valuable for residential or rental purposes. Perhaps it is just as well to permit one of the respondents to state the nature of the injury to the property in her own words.

She said:

"The filling in the sidewalk in front of our premises has damaged it in the way of inconvenience to ourselves and in the way of getting to the coal and things of that kind. It bars us in a measure in getting at the place as easily as we did before. We have to go down and up steps, four steps from the sidewalk down. It leaves the place in a sort of hollow. Before that it was level with the sidewalk."

She further testified that when the house was built the front porch floor was about the same height as the present fill in the street; that it required four steps to reach the floor of the porch, and after the street was filled it also required four steps from the lot level to reach the top of the cement sidewalk which had been laid by the city.

On cross-examination she admitted that there never had been a driveway into the lot from the street in front. Upon that point she said:

"There never was any way to get into property with a team only from the back. One could get into the barnyard, but not beyond that. There was no way to drive in from in front."

From her testimony it is also made to appear that when respondents purchased the property the street along the sidewalk was practically even with the surface of the lot, but that the street proper might have been a little higher, especially so along the easterly margin thereof; that access to the rear of the property is just as it was before the street was raised, and the only inconvenience suffered by respondents in using the property is that they must pass up and down four steps in coming from and going on the sidewalk as explained by the witness. Respondents also produced expert evidence respecting the depreciation of the value of the property by reason of the fill. The jury found for respondents, and awarded them damages in the sum of $ 871.95. Judgment was entered accordingly, and we are asked to reverse the same for the reasons hereinafter stated.

The theory on which the district court tried and submitted the case to the jury is perhaps best reflected from the court's charge. The court, among other things, charged as follows:

"(3) You are instructed that it is established by evidence not disputed in the case that in the year 1893 the city council of Salt Lake City fixed a grade for the sidewalk in front of plaintiffs' premises by resolution of the city council and had the same filed in the office of the city engineer of said city, and that such grade so fixed was more than two feet higher than the sidewalk as laid by the defendant city in the year 1909. You are instructed that such grade fixed by the city council, and so filed in the city engineer's office, was a matter of public record, open to the inspection of the public by any person interested therein. You are further instructed that, if you find from the evidence that prior to the time that plaintiff's house was built the said city, for the purpose of making such street, as distinguished from the sidewalks, to conform to said grade of 1893, filled in the same to substantially the same height as the same was found in the latter part of the year 1909, and has since continued to be, and that an ordinarily prudent person by observing its condition at the time the house was built, and by inquiry at the city engineer's office, and an inspection of the grade fixed by ordinance, would have understood that it was actually the intent of the city to proceed within a reasonable time to raise the sidewalk abutting plaintiffs' property to conform to the grade fixed in 1893, then the court instructs you it was the duty of the owner of the ground at the time of building the house to take notice of such grade fixed by the city council, and to build his improvements so as to prevent or diminish as far as was reasonably practicable the damages that would result to such improvements by reason of carrying into force and effect the grade so previously fixed; and if you find from the evidence in this case that a reasonably prudent person would have so built his improvements, then the court instructs you that for any damage resulting to plaintiffs' premises by reason of such lack of ordinary caution and prudence on the part of the owner the defendant city is not liable.

"(4) You are instructed that the burden is upon the defendant city to prove by a preponderance of the evidence that the conditions of the street were such as to convey notice to an ordinarily prudent owner that the city was acting upon the grade theretofore fixed by the city council, and that it intended to make the sidewalk abutting plaintiffs' property conform to such grade. You are further instructed that, unless you find from the evidence that the city had acted upon grade so fixed by the city council, and had made such street conform thereto to such extent as to carry such notice of its intent to make the sidewalk conform thereto, then the court instructs you that the property owner might act upon the assumption that the city acquiesced in the grade of the street as he found it to actually exist at the time of building his house, and could build his house on the assumption that the street as he found it was the one to be maintained.

"(8) You are instructed that the burden is on the plaintiffs to prove the amount of damages, if...