Hempstead v. Salt Lake City

• Citation: 32 Utah 261,90 P. 397
• Decision Date: 08 May 1907
• Docket Number: 1803
• Court: Supreme Court of Utah
• Parties: HEMPSTEAD v. SALT LAKE CITY

90 P. 397

32 Utah 261

HEMPSTEAD v. SALT LAKE CITY

No. 1803

Supreme Court of Utah

May 8, 1907

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by David B. Hempstead against Salt Lake City, a municipal corporation. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Ogden Hiles and H. J. Dininny for appellant.

APPELLANT'S POINTS.

The rule is, that, whatever specially benefits the property in question should be taken into consideration in assessing damages to the property, even if such benefits are general as regards the public. (Spokane Traction Co. v. Granath [Wash.], 85 P. 261; Lewis v. Seattle, 5 Wash 741; Hilbourne v. Suffolk, 120 Mass. 393; Metropolitan, etc., Co. v. Stickney, 120 Ill. 362; Kirkendall v. Omaha, 39 Neb. 1.)

D. B Hempstead and E. A. Walton for respondent.

RESPONDENT'S POINTS.

The question was, "What, in your judgment, was the diminution in the value, the market value, of this property between the time when--just before the grade was changed, and when the change was completed." Evidence of experts such as these witnesses were, is universally admitted and it is held that the witness may state the diminution of value or damages directly. (2 Elliott on Evidence, 1097. 3 Wig., Ev sec. 1942. Eachus v. Railroad, 103 Cal. 614; Snow v. Railroad, 65 Maine 230; Sherman v. Railroad, 30 Minn. 227; Railroad v. Kirby, 44 Ark. 103; Railroad v. Foreman, 24 W.Va. 662.)

And even where the courts have established the rule that the witness must state the value at the two different times and let the jury perform the subtraction, permitting it to be stated directly is not reversible eror. (Elevator Co. v. Kansas City, etc., Co., 135 Mo. 353, 36 S.W. 1071. 2 Lewis' Eminent Domain [2 Ed.], and especially note 21.)

There can be no doubt that plaintiff's property was damaged and that his property, that is to say, his easements of light, air, egress, and ingress, were taken by reason of the fill in question, and that under the law obtaining in this jurisdiction and generally elsewhere, he is entitled to interest from the time of the damage and taking. The following authorities support this position: 15 Cyc. 744; 2 Lewis' Eminent Domain, 499; Parks v. Boston, 15 Pick. 198; Railroad v. Jones [Utah], 80 P. 732; Whitman v. Railroad, 7 Allen 313; Phillips v. Park Commissioners, 119 Ill. 626, 645; Railroad v. Burson, 61 Pa. St. 381; Kidder v. Inhabitants of Oxford, 116 Mass. 165; Diedrick v. Railway, 47 Wis. 670.

A verdict for a specified sum with interest thereon from a previous date named is sufficient. Id certum est quod certum reddi protest. (Guff v. Hutchinson, 38 Ind. 341; Hattenbach v. Haskins, 12 Ia. 109; Buchanan v. Townsend, 80 Tex. 534.)

The matter discussed in the appellants' brief, under headings seven and eight, involves but one question that is whether damages can be recovered for a change of grade, which is the first change from the natural surface. Appellant insists that they cannot be recovered. There is a conflict of authority but as is said in Leeper v. Denver, 84 P. 849, cited by appellant, such doctrine obtains only in Colorado, Georgia and Mississippi. The following cases and many others support our contention: Less v. City of Butte, 72 P. 140; Eachus v. Railway Co., 103 Cal. 614; Chicago v. Taylor, 125 U.S. 161; Cambridge v. Middlesex, 125 Mass. 529; Smith v. St. Joseph, 122 Mo. 643; Coal v. City of St. Louis, 132 Mo. 633; City of Harvard v. Crouch, 47 Neb. 133; McCall v. Saratoga Springs, 9 N.Y.S. 170; Appeal of Hendricks, 103 Penn. 358; Fort Worth v. Howard [Tex.], 22 S.W. 1059; O'Brien v. Philadelphia, 150 Pa. St. 589; Bloomington v. Pollock, 141 Ill. 346; Hickman v. City of Kansas [Mo.], 23 L. R. A. 658; Searle v. Lead [S. D.], 39 L. R. A. 345.

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

OPINION

FRICK, J.

This action is similar to the one just decided, entitled Kimball v. Salt Lake City, 90 P. 395. The plaintiff, respondent in this court, filed a claim against the appellant city for consequential damages to his property caused by a change of grade on what is known as "Main" or "East Temple street," fronting his property. It appears from the evidence that the street in question is one of the principal streets of the city, and was laid out or dedicated to public use and used as such for more than fifty years, but up to the time of the injury complained of was used and traveled on approximately the original or surface grade. By this is not meant that the surface was not broken up and changed, but what is meant is that the changes from the surface grade were only such as were incidental in view of the location of the street and the topography of the country. It further appears that respondent's property was improved about thirty-two or thirty-three years prior to the making of the street improvements complained of by erecting a three-story, fifteen-roomed dwelling house constructed of part stone and part wood, and by planting trees and shrubbery, and maintaining a lawn thereon; that the property is situated in a desirable part of the city some little distance north of the Temple grounds, and was well adapted for residential purposes, close to the business center of the city, but was separated therefrom by the Temple Square on one side of the street and by college grounds upon the other; that the house was erected and the improvements were made in accordance with the natural or surface grade, and the access to the house and grounds was convenient from all sides and without any obstruction of either air or view, and was occupied as a dwelling place until after the completion of the change of street grade. It further appears that the street improvement consisted of a raise in the grade in the street and sidewalk in front of the property of substantially nine feet, and on the side thereof of about seven feet at the front, with a slope, making it about four feet in the rear, and thus access was cut off to the lot from the front and side, and with it the water was cut off which was used in irrigating the lawn, trees, and shrubbery, and thus making the property inconvenient and undesirable for use as a dwelling, and for that reason it was abandoned. It further appears that the dwelling and property generally were in good condition and repair just before the street improvement was made, but that since then the lawn, shrubbery, and most of the trees have died out for want of the necessary water, and that respondent has been unable to obtain a tenant therefor at a reasonable rent, nor at any price for use as a dwelling. The lot affected fronted five rods on Main or East Temple street and extended back nine rods. Evidence was admitted on the part of respondent giving the value of the house as a dwelling, and also giving the value of the other improvements thereon separately. There was also evidence of the value of the property, including all improvements thereon, and of the real estate by excluding them. Expert or opinion evidence was also produced by both parties and admitted showing the market value of the property as a whole immediately before and after the street improvement, and the respondent was also permitted to show directly by some of the experts what the diminution of the market value of the property was by stating it in amount by designating it as damages to the property. The court, we think, correctly instructed the jury in respect to the measure of damages, and directed them to allow interest at the legal rate from the date of the filing of the claim by respondent against appellant. Upon substantially the foregoing evidence in respect to damages the case was submitted to the jury. A verdict was returned for respondent, and the court entered judgment thereon, from which the appellant prosecutes this appeal.

Appellant assigns numerous errors which need not be separately stated, but may be reduced to the following: (1) Error in not denying respondent the right to recover any damages as matter of law; (2) error in directing the jury to allow interest; (3) error in giving certain instructions by the court; (4) error in refusing certain instructions asked by appellant; and (5) error in overruling appellant's objections to certain questions propounded to respondent's witnesses, and in admitting certain evidence.

While the first assignment of error above noted is not clearly presented by appellant in its assignment of errors, and for that reason might be disregarded by us, we have concluded that inasmuch as both parties have thoroughly discussed the question both in oral argument and in their respective briefs, and as the question is important to the city and property owners alike, the question might as well be disposed of now as at some later time. The question, however we think, is practically answered in the case of Kimball v. City, supra, decided this term. While it is true that in that case the improvements on the property were shown to have been made after a certain so-called "paper grade" (of the street in question) was established by the city, and that they substantially conformed to that grade, and that it appears from the evidence in this case that the improvements on respondent's property were made a long time prior to the grade referred to as the paper grade in the Kimball Case, and were made to conform to the original or surface grade of the street as the same was used for travel--still we do not think that the differences above outlined alter the principle applicable to this and the Kimball Case upon the legal right to recover consequential damages for injury to the property in making a public improvement such as the one in question here. The cases cited in the Kimball Case, as well as the constitutional provision there referred to, are all...