Hickman v. City Of Clarksburg.
| Citation | 81 W.Va. 394 |
| Court | Supreme Court of West Virginia |
| Decision Date | 20 November 1917 |
| Parties | Charles L. Hickman v. City of Clarksburg et al. |
1. Dedication Street Eight to Grade Abutting Owners.
A dedication of a strip of land in a new addition to a city or town, for a street, impliedly confers right upon the city or town authorities, to grade the land so dedicated, to such an extent as to make it safe and convenient for general public use as a highway; and, though grading thereof may impair the dedicator's right of ingress and egress to and from a lot abutting on such street, he has no right of action for such injury, (p. 396).
2. Same Street Grading Impairment of Access.
If the natural surface of land dedicated for a street is so rough, sidling or uneven as not to be reasonably suitable for use as a highway, actual use thereof in such condition, by the general public, for a long period of time, does not constitute establishment of the natural surface as the grade line of the street, and the municipal authorities may put the street in condition for reasonably safe and convenient use, by grading, without liability for incidental impairment of access to an abutting lot. (p. 896).
Error to Circuit Court, Harrison County.
Action by Charles L. Hickman against the City of Clarksburg and another. Judgment for plaintiff, and defendants bring error.
Reversed and remanded.
Melvin G. Sperry and L. C. Crile, for plaintiffs in error.
Osman E. Swartz and E. Bryan Templeman, for defendant in error.
This complaint goes to a judgment for $134.33, against the city of Clarksburg, for alleged injury to the plaintiff's lot, occasioned by the lowering of the street grade in front of it.
There never was a formal dedication of the street in question. About twenty years before the excavation complained of was made, the plaintiff platted it and threw it open to public use, in the division of a small tract of land into town
81 W. Va. lots. Not long afterward, he built a house on lot No. 5. He had sold all of the other lots fronting on Elliott Street, Nos. 1, 2, 3, 4 and 6, and buildings have been erected on some of them. Though it was laid out longitudinally with the slope of a hill on which it was located, the street never was graded to any extent whatever. Wagons could be driven over it and were, but it was not in reasonable condition for general and ordinaiy use by the public. Passing over a point or knob of land on which plaintiff's lot is located, from east to west, it had three slopes, one east, one west and one north, the latter being from side to side and the others with the direction of the street.
In September, 1908, the city established a grade line and authorized J. P. Dye to grade the street, he taking the dirt for his services and using it in the filling of a neighboring lot. After he had taken away a considerable quantity of earth and incidentally cut down the grade on the upper side of the street, about two or three feet, next to plaintiff's lot and about three or four feet from his property line, he discovered the work and stopped it.
Both the city and its alleged agent, Dye, having been made defendants and the verdict having exonerated Dye and held only the city liable, it is said the finding in favor of Dye necessitates a like finding as to the city, for, since both participated in the doing of the act complained of, they are both innocent or both guilty. The authorities cited for this proposition are decisions in cases involving only mere torts or wrongs incidentally inflicted in the execution of a rightful enterprise. In this instance, no wrong collateral or incidental to the city's enterprise has been done. The injury, if any, resulted directly from the work done by the city through its agent or servant, and that enterprise or work was within the power and authority of the city. The excavation was a legal and rightful act on the part of the city, wherefore its servant did nothing wrong. Notwithstanding the rightfulness of its act, however, the city is liable for injury occasioned to the abutting lot, because the constitution requires it to compensate the owner of private property for injuries inflicted upon it, in the construction of public improvement works, unless the right of compensation therefor has been released or waived in some way. Blair v. CJiarleston, 43 W. Va. 62, 64; Johnson v. Parkersburg, 16 W. Va. 402; Hutchinson v. Parkersburg, 25 W. Va. 226.
The case was tried upon the theory of a building and improvement by the plaintiff, with reference to the natural grade of the street, treated and considered as a grade line impliedly adopted by the city, the street having been used in that condition by the general public. Decisions of this court, cited above, hold the change of a grade so fixed subjects the city to liability for injury to abutting property, but, in each of them, a road reasonably fit for use and publicly used was involved. Here we have only the unimproved space for a highway, used for several years, but really never converted into a convenient street or road....
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