Home Bldg. & Conveyance Co v. City Of Roanoke 1

• Decision Date: 31 January 1895
• Citation: 20 S.E. 895,91 Va. 52
• Court: Virginia Supreme Court
• Parties: HOME BUILDING & CONVEYANCE CO. v. CITY OF ROANOKE et al.1

20 S.E. 895

91 Va. 52

HOME BUILDING & CONVEYANCE CO.

v.CITY OF ROANOKE et al.¹

Supreme Court of Appeals of Virginia.

Jan. 31, 1895.

Powers of City—Public Improvements—Change of Street Grade — Injury to Abutting Owner— Damnum Absque Injuria.

1. A city may, under its legislative charter, raise or lower the grade of its streets without compensating abutting owners for damage caused thereby.

2. The right of the city to change the grade is independent of the question whether the fee of the street is in the city or in adjoining lot holders.

3. The provision of the charter of Roanoke city giving it power to "build bridges in and culverts under the streets" authorizes it to construct approaches in the streets to bridges built by the city.

4. The city of Roanoke, in making street improvements authorized by its charter, is the agent of the state, and performing a public duty imposed upon it by the legislature, and is not liable for consequential damages, if it act within its jurisdiction, and with care and skill.

5. Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are not a taking of private property within the constitutional prohibition against taking property without compensation, but are damnum absque injuria.

G. A city charter provision requiring all contracts for public improvements to be let to the lowest responsible bidder, after notice, etc., does not prohibit the city from constructing approaches to a bridge under direction of its own engineers and officers.

Appeal from circuit court of city of Roanoke.

Suit by the Home Building & Conveyance Company against the city of Roanoke and others to restrain the erection of approaches to a certain bridge. Prom a decree dissolving an injunction granted, complainant appeals. Affirmed.

Scott & Dupuy and A. P. Staples, for appellant.

Thos. W. Miller and W. A. Glasgow, Jr., for appellees.

CARDWELL, J. The city of Roanoke, on the 29th day of July, 1890, entered into an agreement in writing, duly executed, with the Norfolk & Western Railroad Company, whereby the said railroad company agreed on its part to build, and furnish the material therefor, at its own expense, an overhead bridge across the railroad at three points in the city of Roanoke, among the number at Randolph street, where it intersected with Railroad avenue, running parallel to said railroad, and in consideration whereof the city of Roanoke agreed on its part to build the approaches to said bridges. Accordingly, the city of Roanoke proceeded to construct the approach to the bridge to be erected, and which has been erected, by the Norfolk & Western Railroad Company across its roadbed at the point named in Randolph street, and the city prosecuted the work till enjoined, as will be hereinafter stated. On August, 4, 1891, the Home Building & Conveyance Company, a corporation duly chartered under the laws of Virginia, as owner of a certain lot of land in the city of Roanoke, situated on the east side of Randolph street at and near the intersection of said street with Railroad avenue, and as a taxpayer of said city, presented its bill of complaint, together with certain exhibits and affidavits therewith, to the Honorable Henry E. Blair, judge of the circuit court of the city of Roanoke, praying that the city and one T. S. Boswell, their agents, etc., be enjoined and restrained from further prosecuting the work, and that all obstructions placed by them in and upon Randolph street be removed, unless complainant was compensated for injuries sustained, etc. And the defendants to the bill, having been notified of the application for the injunction, appeared by counsel, and filed their demurrers and answers to the bill, to which answers the complainant replied generally, but the judge, for reasons stated in the order entered by him August 6, 1891, refused to grant the same; whereupon the complainant, after first agreeing with the defendants as to the time and place thereof, on the 20th day of August, 1891, at Marion, Va., renewed its motion for injunction before one of the judges of this court, who likewise refused it. After notice to the defendants, complainant on the 14th day of September, 1891, presented before another of the judges of this court, at Staunton, the original papers theretofore presented to the judge of the circuit court of the city of Roanoke, and again renewed its motion for an injunction according to the prayer of the bill, which was granted; and the cause, together with all papers therewith, was remanded to the circuit court of the city of Roanoke for further proceedings therein, etc. On the 9th day of November, 1891, the circuit court of the city of Roanoke dissolved the injunction, and dismissed complainant's bill, and it is from this decree that an appeal was allowed to this court by one of its judges, and to operate as a supersedeas.

The material facts in the case are fully set out in the pleadings, and not controverted, and, in addition, there is an agreement of facts between the parties, reduced to writing, and made a part of the record. That we may fully understand the locus in quo, it will be necessary to refer here particularly to the following among the facts agreed on, namely: "That the approach at Randolph street starts at a grade at the northern side of Campbell street, and rises to a height of 13 feet at thenorthern side of Salem avenue, which is of dirt, and is in Randolph street. That in Randolph street is a stone structure, commencing at the northern side of Salem avenue, at the height of 13 feet, of 35 feet in width, and extending to within 60 or 65 feet of the northeast corner of Railroad avenue and Randolph street, and rising to a height of 16 feet. That this approach and structure do not extend to either side of the street, but leave on each side of the structure about 7 1/2 feet on Randolph street unoccupied, available for the use of the complainant and the public in approaching to the complainant's lot on Randolph street. That from the northern end of the stone structure to the line of Railroad avenue the superstructure rises from 16 to 18 feet at the south line of Railroad avenue, and that a few feet south of the south line of Railroad avenue, on Randolph street, are two columns supporting the superstructure. That on the south side of Railroad avenue, and on the north line of the curb of that street, rises the stairway or foot approach to the bridge, extending from the east line of lot No. 18 to bridge." Upon the agreed facts and those proven in the record the case stands thus: The Norfolk & Western Railroad Company, in operation now nearly a half century, doing an immense business in passenger and freight traffic, traverses the entire length of the city of Roanoke from east to west, —a city that has developed from a way station, with a few residences around, to a city of some 20, 000 inhabitants, almost within a decade, with a portion of the inhabitants of the city on the south side and the remainder on the north side of the tracks. That for a great distance, including the point where Randolph street intersects Railroad avenue, a surface crossing from one side of the railroad to the other, was almost, if not entirely, impracticable, in view of the number of tracks along the streets of the city at this point, over which there is a constant stream of passenger and freight trains, as well as yard engines; whereby, to say nothing of the constant danger to which the traveling public was subjected, free intercourse between the citizens of the city residing on different sides of the railroad was constantly interfered with. This situation being recognized by the city of Roanoke, it, as early as January 7, 1890, passed an ordinance submitting to the freehold voters the question of issuing bonds to the amount of $30,000 for the purpose of constructing the approaches to the bridges to be built across the Norfolk & Western Railroad track at three points, including the one at Randolph street; and, upon a vote being taken thereupon on the 18th day of February, 1890, the freeholders almost unanimously approved of the issuing of the bonds. The bonds were Issued and negotiated, and the proceeds thereof in cash lay in the treasury of the city, less the amount expended in the prosecution of this work up to the time of the service of the injunction in this suit. This is nowhere controverted in the record and the work of building the approach to the bridge at Randolph street was begun in November, 1890, and prosecuted till the injunction was actually served upon the city after September 14, 1891, while the deed to appellant for its property on Randolph street is dated June 18, 1890.

The appellant, in its petition for appeal to this court, makes a general assignment of error that the circuit court of Roanoke erred in dissolving the injunction granted In this cause by Hon. B. W. Lacy, one of the judges of this court, and in dismissing petitioner's bill. This brings up the questions raised by the original bill filed in the lower court, all of which hinge upon whether the construction by the city of Roanoke of the approach to the overhead bridge in Randolph street without compensation to the appellant as an abutting lot owner is the taking of the property of appellant without compensation, within the meaning of section 14 of article 5 of the constitution of Virginia; In other words, has the city of Roanoke transcended the authority conferred upon it by its legislative charter in placing the approach to the bridge in Randolph street In the manner in which it is constructed? The fifth subdivision of section 18 of the charter of the city of Roanoke(Acts 1883-84, p. 91) gives to the city of Roanoke the power "to close or extend, widen or narrow, lay out, graduate, curb and pave, and otherwise improve streets, sidewalks, and public alleys in said city and have them kept in good order and properly...