Harper v. Town of Lenoir

• Decision Date: 27 May 1910
• Parties: HARPER v. TOWN OF LENOIR.
• Court: North Carolina Supreme Court

68 S.E. 228

152 N.C. 723

HARPER v. TOWN OF LENOIR.

Supreme Court of North Carolina

May 27, 1910

Appeal from Superior Court, Caldwell County; Councill, Judge.

Civil action by George F. Harper against the Town of Lenoir. From a judgment on a verdict for plaintiff, defendant appeals. Affirmed.

Where defendant, in cross-examination of a witness in an action for injury to property by negligence in change of street, brought out the statement that the property had been assessed for taxation at a much lower value than plaintiff claimed, the statement of witness on redirect that the tax assessors were accustomed to assess such property at about one-third its true value was relevant, certainly not ground for reversal.

Civil action tried at November term, 1909. There was evidence tending to show that the plaintiff was the owner of a house and lot in the town of Lenoir, abutting on Main street, and also on North Boundary street; that the authorities of the town in charge of the matter, having determined on a change of grade of these streets, proceeded to dig down and lower the Main street, leaving plaintiff's property 12 or 15 feet above the level of the sidewalk, and were about to commence like action on North Boundary street, when plaintiff instituted the present suit. While the record does not make the matter very clear as to what was the original purpose of the action nor what part of the digging took place, or damage was caused before the same was commenced, it seems to have been admitted on the argument that the suit was instituted to restrain the authorities from going on with the work complained of, and that, this having been stopped, no restraining order was issued, and the suit was proceeded with without process of that character, and was tried on an issue as to negligence. It appears to have been further conceded that the change of grade along Main street had been completed before suit commenced, but that some of the consequential damages had occurred from it since action brought, and evidence as to all such damage was admitted over defendant's objection. The original complaint, evidently drawn with a view of using same also as an affidavit on the hearing of an application for a restraining order, contained allegations of carelessness in the work on the part of the defendant, and was filed at the return term in 1908, and answer was then filed by defendant denying all material averments. At the trial term, in November, 1909, plaintiff was allowed, over defendant's objection, to amend his complaint, making a more extended and specific allegation of negligence on part of defendant in doing the work complained of, and amended answer was then filed by defendant. There was evidence on part of plaintiff tending to show injury to the plaintiff's property by reason of alleged negligence causing substantial damage to same, part of this damage occurring before commencement of the suit, and to all evidence tending to show damages subsequently occurring defendant objected and properly filed exceptions.

On issues submitted, the jury rendered the following verdict:

"(1) Did the defendant have authority under the law to lower the grade of North Main street in the town of Lenoir, and to remove earth therefrom up to the line of the plaintiff's property? Answer: Yes.

"(2) Was the plaintiff's property injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

"(3) What damage, if any, is plaintiff entitled to recover? Answer: $800."

Judgment on verdict for plaintiff, and defendant excepted and appealed.

Geo. W Wilson, W. C. Newland, and Lawrence Wakefield, for appellant.

W. A. Self and Mark Squires, for appellee.

HOKE, J. (after stating the facts as above).

On the issue as to defendant's responsibility, the court below, among other things, charged the jury as follows: "Cities and towns have the right to improve streets and pavements for the public good, and, in the exercise of this right, may grade down streets and pavements to a lower or make them of greater elevation than the property of adjacent or abutting property owners, and if in doing such work the town or city exercises (A) care and skill--that is, does the work properly--(B) then if injury results to the adjacent or abutting owners, either by leaving their property below or above the grade so made, the property owners are not entitled to recover damages, even though their property is rendered of less value by reason of the work so done. Nor can property owners recover damages under such conditions because of the ingress or egress to their property being interrupted or hindered, nor can they recover because of the effect of such work upon the appearance of their property." And again: "Every one who owns real estate in a city or town that adjoins a public street or pavement holds it subject to the right of the city or town to grade such street or pavement down or to elevate it when in the exercise of the judgment of the authorities of the city or town it becomes necessary or advisable to do so. And where grading is done under such conditions (C) and is done properly--that is, with care and skill, and with due regard to the rights of the property owners--(D) then the law affords no protection to the property owners on account of injury to their property resulting from being left at a higher or lower level than the street or pavement, or on account of ingress or egress to such property being affected, or for any injury to the appearance of the property." This is a very correct statement of the law as it obtains with us, where streets have been already established, and is in accord with numerous decisions of our court on the subject. Dorsey v. Henderson, 148 N.C. 423, 62 S.E. 547; Jones v. Henderson, 147 N.C. 120, 60 S.E. 894; Wolfe v. Pearson, 114 N.C. 621, 19 S.E. 264; Meares v. Wilmington, 31 N.C. 73, 49 Am. Dec. 412. Under the charge, and applying this principle, the jury have awarded plaintiff damages for the negligent manner in which this work was done by the town authorities, and, unless there is reversible error appearing in the record, the judgment in his favor must be affirmed.

It was objected to the validity of the recovery that the judge on the issue as to negligence imposed upon the defendant the duty of constructing a retaining wall for the protection of plaintiff's property, but, on the facts presented, we do not think the position can be sustained. The defendant certainly is not required to build a retaining wall in every case where an excavation of this character is made, nor is the cost of such a wall usually the correct measure of damages; but where, as in this case, the change of grade involves an excavation 12 or 14 feet, leaving plaintiff's property abutting on an embankment of that height, nearly perpendicular, and with a soil showing a tendency to crumble away, "a rotten, ashy kind of soil that has no body, has a good deal of isinglass and mica in it, not a kind of soil that will stand in any such shape as that," we think the court correctly held that proper care required that some kind of proper support should have been provided; and a failure to provide such support was correctly imputed for negligence on the part of the town. This was substantially held in Meares' Case, supra, and the decision was so interpreted in Jones' Case, supra; both cases certainly giving decided intimation that the failure to build a retaining wall under the conditions indicated was properly held to be actionable negligence.

It was objected, further, on the part of the defendant, that the action having been instituted primarily to obtain an injunction, and before any substantial damages had accrued from the alleged wrong, the court had no power to allow an amendment demanding damages for a negligent breach of duty on the part of defendant; the position being that such an amendment amounted to an entire change in the scope and purpose of the action, and constituted reversible error under the authority of Clendenin v. Turner, 96 N.C. 421, 2 S.E. 51, and that class of cases. As heretofore stated, it does not necessarily appear that it was the sole purpose of the action to obtain an injunction, and the original complaint contains averments which by correct interpretation amount to a charge of negligence, so that the facts here are against the defendant, but, if it were otherwise, the position cannot be sustained. Courts of equity not infrequently award damages when such a demand is incident to some recognized source of equitable relief; and under our system, combining legal and equitable actions in one and the same jurisdiction, and permitting the joinder of "all causes of action arising out of the same transaction or transactions growing out of the same subject of action" (Revisal, § 469), it was not only permissible, but eminently proper, that the plaintiff should be allowed to amend and claim the damages accrued, and which were incident to the principal relief. Beach on Injunctions, § 10; Pomeroy's Equity Jurisprudence, §§ 112-237. Making a short extract from the last citation: "Equity, therefore, assumed a...