Harman v. Bluefield.
| Decision Date | 12 December 1911 |
| Citation | 70 W.Va. 129 |
| Court | West Virginia Supreme Court |
| Parties | Harman v. Bluefield. |
Street Damages.
If, by changing the grade line of one of its streets, a municipality injure the property of an abutting owner, it is liable, (p. 131).
If the public have been permitted to use an open street on the natural grade, and to build on lots abutting thereon with reference to such natural grade, and the municipality thereafter improve the street and thereby cause injury to an abutting owner, it is liable, (p. 132).
Grade of Street Damages.
If a municipality extends its corporate lines so as to include territory which had theretofore been, laid off into building lots and streets, and thereafter permit such streets to be used by the public and later improves them, it thereby makes them public streets, and the municipality becomes liable for any injury to abutting lot owners occasioned by an alteration in the natural grade line of the street, (p. 131).
Street Damages.
The true measure of damages to a lot abutting on a street, occasioned by a change in the grade line of the street, is the difference between the value of the lot immediately before, and ils value immediately after, the street improvement, less any special or peculiar benefits to the lot because of the improvement of the street, but leaving out of account such general benefits as accrue to it in common with other property similarly situated, (p. 135).
dence.
As an element affecting the value of his property, plaintiff may prove what will be the cost of any alterations in his property which have been rendered necessary, on account of the street improvement, to preserve it from further injury and render it fit for enjoyment, (p. 134).
Error to Circuit Court, Mercer County.
Action by M. K. Harman against the City of Bluefield and another. Judgment for plaintiff, and defendant named brings error.
Affirmed.
Ritz & Ritz and D. E. French, for plaintiff in error. Sanders & Crockett, for defendant in error.
Williams, President:
Plaintiff brought an action against defendant to recover damages for alleged injury to his real estate, and recovered a judgment for $800.00, and defendant has brought the case here on writ of error.
Plaintiff is the owner of a corner lot, fronting 54 feet on Bland street and extending back along North street 100 feet, in the City of Bluefield. Early in 1905 he erected a wooden frame building upon this lot, and used it for a store and dwelling house combined. He also built a wood frame stable on the back end of the lot. The house is 30x48 feet, and stands in the angle of Bland and North streets. At the time these buildings were erected the lot on which they stand was not within the city, but on the 1st of June, 1905, the corporate limits were extended so as to include it. There was a county road where Bland street now is, and plaintiff built his house with reference to the grade line of the county road. After the city had acquired jurisdiction over the new territory, it widened, and changed the grade line of the county road, and also changed the grade line of North street, and paved both of said streets, and granted a franchise to the Bluestone Traction Company, a corporation, to lay its tracks and operate its cars upon said streets. A branch, or natural drain runs across the lot between the house and stable and across North street, and the lot slopes from both ends towards the branch. In grading the two streets the city lowered the grade line by nearly a foot at the intersection of Bland street and North street, and elevated the grade line at the other corner of plaintiff's lot on Bland street, and also raised the grade line of North street along the side of plaintiff's lot from three to five feet in places, and erected a concrete culvert across the branch.
It is the well settled law of this state that a municipality is liable to an abutting lot owner for injury done to his property by changing the grade line of the street. Jo'linson v. Parkersburg, 16 W. Va. 402; Hutchinson v. Parkersburg, 25 W. Va. 226; Blair v. Charleston, 43 W. Va. 62.
But, it is contended, plaintiff was not entitled to damages on account of the elevation.of the grade line of North street, because it was not proven that the city had ever, previous to the paving in question, established a grade line for that street. It is insisted that a municipality is not liable because of the establishment of a grade line in the first instance. It does not appear that North street was expressly adopted by city ordinance, as one of its public thorough-fares and opened to travel, but it does appear that it was used by the public, on the natural grade, as a public: street for about two years "before the improvement in question was made. The corporate limits were extended to include the territory embracing North street, June 1, 1905, but that was after plaintiff had built his house with reference to the natural grade line. Witness George H. Hill, city engineer, says he does not know when North street was located; he wTas then city engineer, and had been such engineer since the 1st of June, 1905. If North street had been located by the cit}r during his incumbency, he certainly would have known it. Therefore, while negative in character, his testimony proves that North street had been located by someone, other than the city, and opened to the public, prior to the extension of the corporate limits of the city. Consequently, when the city took in the new territory, it must be considered as having adopted North street as a public street. True, there is no formal ordinance opening the street to the public, but the improvement made on it, without change of its location, is sufficient evidence that the city adopted it, and permitted it to be used as one of its public streets, from the time its corporate lines were extended.
. Plaintiff had a right to build his house to conform to the grade line of the county road, and natural grade line of North street, and if the change in the grade line, afterwards made by the city injured his property, it was an injury wdiich entitles him to compensation. It was a damaging to his property, for the public use, and our Constitution says: "Private property shall not be taken or damaged for public use without just compensation; * * * Sec. 9, Art. III.
It is not necessary that the city should have first, by ordinance, established a grade line, and then afterwards have changed it, to constitute liability. The use of North street by the public from 1905 to 1907, when it was improved, and the grade line was changed, was tantamount to an adoption of the street with the natural surface as the grade line, and any subsequent change from that grade line, which injured plaintiffs property, rendered the city liable. II id chins on v. Parhersburg, 25 W. Ya. 226; Blair v. Charleston, 43 W. Ya. 62: Bar. New Brighton v. United Pres. Ch., 96 Pa. St. 331; Jones v. Bor. Bangor, 144 Pa. St, 639; Davis v. By. Co., 119 Mo. 180; JJickman v. City of Kansas, 120 Mo. 110; Bloomington v. Pollock, 141 111. 346.
Plaintiff conveyed to the city a strip of land off his...
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