Henderson v. City of Minneapolis

• Decision Date: 19 July 1884
• Citation: 20 N.W. 322,32 Minn. 319
• Parties: HENDERSON v CITY OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

32 Minn. 319

20 N.W. 322

HENDERSONvCITY OF MINNEAPOLIS.

Supreme Court of Minnesota.

Filed July 19, 1884.

Appeal from a judgment of the district court, Hennepin county.

Hart & Brewer, for appellant, J. H. Henderson.

Judson N. Cross, for respondent, City of Minneapolis.

DICKINSON, J.

It appears by the pleadings upon which this cause is to be determined that the plaintiff is the owner of a lot of land fronting upon a public street in the city of Minneapolis, owning the fee, subject to the public easement, to the center of the street. In 1880, by the action of the city authorities, a grade was established upon this street and the street graded in conformity therewith. Upon the lot, and upon a level with the established grade, stood the plaintiff's dwelling-house, and a valuable livery barn and stable, the livery barn having been placed upon the lot after the grade was established. Adjacent to the property of plaintiff is land occupied by the St. Paul, Minneapolis & Manitoba Railway Company for its railroad, several tracks crossing the said street near plaintiff's premises. In 1883 the city council authorized the railroad company to construct a bridge upon and along the street at a considerable elevation above the established grade, so as to carry the street over the railroad tracks; and the city undertook to and did raise the street in front of plaintiff's lot to an average height of about 15 feet above the former grade, so as to form an approach to the elevated bridge. The established grade of the street was changed by the action of the municipal authorities so that it conformed to the changed condition of the street. In consequence of the raising of the grade of the street the plaintiff's property has been rendered inaccessible, that being the only street affording access to it, and its value greatly diminished.

It is not claimed that there has been any misconduct in the manner of performing the work of raising the street to the new grade. The principal question presented is whether the city is liable to respond in damages for this consequential injury to the plaintiff's property. The municipal charter expressly empowers the city council to establish the grade of any street, and, by a vote of two-thirds of the members, to change the grade of any street after it has been established. Sess. Laws 1881, c. 76, subc. 8, § 2. By a long current of decisions, almost without dissent, the law has been declared to be that the owner of property adjacent to a public street is not entitled to a remedy for injuries resulting from the exercise in a proper manner of lawful authority in establishing or changing the grade of the street. British Cast Plate Manuf'rs v. Meredeth, 4 Term. R. 794; Boulton v. Crowther, 2 Barn. & C. 703; Smith v. Washington, 20 How. 135;Callendar v. Marsh, 1 Pick. 418; Skinner v. Hartford Bridge Co. 29 Conn. 523; Burritt v. New Haven, 42 Conn. 174; Radcliff v. Brooklyn, 4 N. Y. 195; Plum v. Morris Canal & Banking Co. 10 N. J. Eq. 256; O'Connor v. Pittsburgh, 18 Pa. St. 187; Green v. Borough of Reading, 9 Watts, 382; Pounds v. Mumford, 2 R. I. 154; Pontiac v. Carter, 32 Mich. 164;Burlington v. Gilbert, 31 Iowa, 356;Roberts v. Chicago, 26 Ill. 249;Quincy v. Jones, 76 Ill. 231;Hoffman v. St. Louis, 15 Mo. 651;Wabash v. Alber, 88 Ind. 428;Shaw v. Crocker, 42 Cal. 435;White v. Yazoo City, 27 Miss. 357.

To the extent of denying a right of recovery for consequential injuries from an original establishment of grade, this court has recognized the law to be as here declared in Lee v. City of Minneapolis, 22 Minn. 13;Alden v. City of Minneapolis, 24 Minn. 254; and O'Brien v. City of St. Paul, 25 Minn. 331-334. We have, however, considered that a municipal corporation will be liable for damages caused to private property by grading streets, when a private owner of the soil over which the streets are laid would be liable if he were making the same improvement upon his own land for his own use. O'Brien v. City of St. Paul, supra; Dyer v. City of St. Paul, 27 Minn. 457;S. C. 8 N. W. REP. 272;Armstrong v. City of St. Paul, 30 Minn. 299;S. C. 15 N. W. REP. 174. But this case is obviously not within the limitation of the general principle upon which those cases rest, and is to be governed by the general rule of law above asserted. In principle there is no difference between the case of injuries resulting from an original establishment of a grade, and those resulting from an authorized change of an established grade. Authorities above cited; and see Karst v. St. Paul, S. & T. F. R. R. 22 Minn. 118. In both cases the principle is the same; that is, a public right acquired, to which individual convenience and interest are subject. Upon the acquisition by the public, from the original owner of the soil, of the right to use...