J. A. & C. E. Bennett v. Winston-Salem South-Bound Ry. Co.
| Decision Date | 08 December 1915 |
| Docket Number | 321. |
| Parties | L.R.A. 1916D,1074, 170 N.C. 389 v. WINSTON-SALEM SOUTH-BOUND RY. CO. J. A. & C. E. BENNETT |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; Devin, Judge.
Action by J. A. & C. E. Bennett against the Winston-Salem South-Bound Railway Company and the City of Winston-Salem. Judgment for plaintiffs, and the Railway Company appeals. No error.
Unless otherwise provided by the Constitution or statute, owner of property abutting a street cannot recover for damage thereto from a change in the grade under proper municipal authority where there is no negligence in the manner of doing the work such damage being "damnum absque injuria."--
This action was brought by the plaintiffs against the appealing defendant and the city of Winston-Salem to recover damages for injury to their lot in said city, caused by the construction of a bridge or a viaduct, and the approaches thereto, along Bank street in said city, and between Liberty and Elm streets. It appears in the case that the defendant railroad company had laid a part of its track across Bank street at grade, and desiring to raise the grade of the street, and for that purpose to build the bridge in question and construct the approaches thereto, it obtained permission from the city to do so, upon giving a bond to indemnify it against the damages. The railroad company then proceeded with the work, constructed the bridge, and raised the level of the street in such a way that ingress and egress to the plaintiffs' lot was so obstructed as to greatly impair the value of the property. This was the allegation of the plaintiffs, and there was proof to sustain it, though it was denied by the defendant, which alleged that the work was done by the permission of the city and under its authority, and was also carefully performed according to a correct plan. The case was submitted to the jury upon the following issue:
Judgment was rendered upon the verdict and the defendant railway company appealed, and reserved several exceptions to the rulings and judgment of the court.
Watson Buxton & Watson, of Winston-Salem, for appellant.
Louis M. Swink, of Winston-Salem, for appellees.
WALKER J. (after stating the facts as above).
It is apparent, from the entire record in this case, that the railway company, in constructing the bridge and its approaches, was acting in its own behalf and for its own use and benefit, although it had obtained the permission of the city to do the work, and the same was done with its consent, but the work was not done by the city in the exercise of its governmental function, through the defendant, so as to protect the latter from liability except for negligence. It is well settled with us, and it is very generally held in other jurisdictions, that, unless otherwise provided by the Constitution or statute, the owner of property abutting on a street cannot recover for any damage to his property caused by a change in the grade of the street under proper municipal authority, where there is no negligence in the method or manner of doing the work. Meares v. Wilmington, 31 N.C. 73, 49 Am. Dec. 412; Wolfe v. Pearson, 114 N.C. 621, 19 S.E. 264; Jones v. Town of Henderson, 147 N.C. 120, 60 S.E. 894; Dorsey v. Town of Henderson, 148 N.C. 423, 62 S.E. 547; Harper v. Town of Lenoir, 152 N.C. 723, 68 S.E. 228; Stratford v. City of Greensboro, 124 N.C. 127, 32 S.E. 394; Jeffress v. City of Greenville, 154 N.C. 500, 70 S.E. 919; Hoyle v. City of Hickory, 164 N.C. 82, 80 S.E. 254; Hoyle v. City of Hickory, 167 N.C. 621, 83 S.E. 738; McQuillin on Municipal Corporations, § 1975; 2 Dillon on Municipal Corporations, § 1040.
In Hoyle v. Hickory, 167 N.C. 620, 83 S.E. 738, this court said:
"It was decided in the former appeal that, while plaintiffs could not recover for any detriment to their property which was the result merely of the proper grading of the street, which had been done in the due exercise of the discretionary power of the city to make needed improvements, it being damnum absque injuria, yet they could recover for any damage done thereto which was caused by a negligent grading of the street, following the principle as adopted in numerous decisions of this court"--citing many authorities.
This principle, we state in the same case, has been recognized and enforced since the days of Chief Justice Kenyon and Justice Buller. Governor, etc., Manufacturers v. Meredith, 4 Durnf. & East, 794, 796; Sutton v. Clark, 6 Taunton, 28; Boulton v. Crowther, 2 Barn. & Creswell, 703. The doctrine is almost universally accepted by the state courts of this country. Cooley Const. Lim. p. 542, and notes. It was affirmed in Transportation Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336, Smith v. Corp. of Washington, 20 How. 135, 15 L.Ed. 858, and Mead v. Portland, 200 U.S. 148, 26 S.Ct. 171, 50 L.Ed. 413. As stated by the court in the case last cited, it may be thus summarized: The doctrine, however it may at times appear to be at variance with natural justice, rests upon the soundest legal reason. The state holds its highways in trust for the public. Improvements made by its direction or by its authority are its acts, and the ultimate responsibility, of course, should rest upon it. But it is the prerogative of the state to be exempt from coercion by suit, except by its own consent. This prerogative would amount to nothing if it did not protect the agents for improving highways which the state is compelled to employ. This principle of the law is usually made to rest upon the theory that any and all changes of this character in the streets of the town are supposed to have been contemplated, and therefore provided for in advance of the improvement and at the time of the original dedication of the street, and any abutting owner acquires and improves his property with full notice that such changes may be made from time to time. Nichols on the Power of Eminent Domain,§§ 81, 82 and 83; Lewis on Em. Dom. (3d Ed.) § 134. Nichols on Em. Dom. supra, says:
And Lewis on Em. Dom. supra, says that:
"When a street or highway is laid out, compensation is given once for all, not only for the land taken, but for damages which may, at any time, be occasioned by adapting the surface of the street to the public needs."
This power to further grade and improve the streets of the town is a continuing one, and may be exercised, in the legal discretion of the municipal government, whenever the public may require it, as will appear from the above-cited authorities, and also 1 Elliott on Streets and Roads (3d Ed.) § 551. This discretion, although it may be a legal one cannot be interfered with by the courts, except in case of manifest and gross abuse, or when it would be arbitrary and oppressive. Brodnax v. Groom, 64 N.C. 244; Small v. Edenton, 146 N.C. 527, 60 S.E. 413, 20 L. R. A. (N. S.) 145; Luther v. Commissioners, 164 N.C. 241, 80 S.E. 386; and other cases above cited. This power of the municipal corporation may, of course, be exercised by it through its own agents, who are commissioned or appointed to do the work which may be required in order to make the improvement in the street. And when the work is done carefully, either by the corporation itself or by it when acting through its agents, the abutting owner has no legal right to...
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