Johnson v. City of Parkeksburg.

• Decision Date: 03 April 1880
• Citation: 16 W.Va. 402
• Court: West Virginia Supreme Court
• Parties: Johnson v. City of Parkeksburg.

16 W.Va. 402

Johnson

v.City of Parkeksburg.

Supreme Court of Appeals of West Virginia.

Decided April 3, 1880.

1. If a municipal corporation, in changing the grade, by raising or depressing its streets, permanently damages private property without acquiring the right to do so, and if demanded, by paying just compensation therefor, it violates section 1) of the bill of rights, which declares that private property shall not be taken or damaged for public use without just compensation.

2. The first clause of section 9 of the bill of rights, ex proprio vigore protects private property from damage for public use, without just compensation.

3. When the Constitution forbids a damage to private property and points out no remedy, and no statute gives a remedy for the invasion of the right of property thus secured, the common law, which gives a remedy for every wrong, will furnish the appropriate action for the redress of such grievances.

4. Upon a question as to the establishment of the grade of streets in a city, the records of the city council on the subject are proper evidence to go to the jury.

Writ of error and supersedeas to a judgment of the circuit court of the county of Wood, rendered on the 10th day of April, 1878, in an action on the case in said court then pending, wherein Romanta Johnson was plaintiff, and the city of Parkersburg was defendant, allowed upon the petition of said defendant.

Hon. J. M. Jackson, judge of the fifth judicial circuit, rendered the judgment complained of.

Johnson, Judge, furnishes the following statement of the case:

This is an action of trespass on the case brought by the plaintiff, Johnson, against the defendant, The City of Parkersburg, in the circuit court of Wood county in April, 1867. The declaration alleges the passage by the Legislature of the State of West Virginia on the 27th of February, 1877, of "an act establishing a uniform grade and system of drainage in the city of Parkersburg," and sets out the act in full.

The first section of the act provides, that the city council of Parkersburg shall previous to the 1st day of March, 1867, cause to be made, and adopt a complete system of grades and drainage for the streets and alleys thereof, and place the same on record in the recorder's office of Wood county, and also in the office of the city engineer. The second section provides, that when property now within the city, or additions made to the city, is laid out, it shall be the duty of the council to adopt a system of grades and drainage for such additions within six months from the date thereof, which shall be recorded as required in the first section.

Section four provides, that "if at any time the city council may desire to change the grade of any street or alley from that established by virtue of this act, it may have the power to do so, provided the assent of a majority of the property-owners along the line of said proposed change be first obtained thereto, pravided that if said change be deemed expedient for the general welfare of the city, and the assent of a majority of the property-owners along the line of said proposed change cannot be obtained thereto, the council may make the change upon the payment of such damages as may be agreed upon by said property-holders and council, and in case such damages cannot be agreed upon by any of said property-holders and council, then the council may make the desired change in such grade upon lowering or raising the buildings along said line to the proposed grade."

The declaration further alleges, that on the 28th of February, 1872, the first section of said act was amended by inserting the words "previous to the 1st day ot November, 1872," in lieu of the words "previous to the 1st day of March, 1867"; that in pursuance of said act so amended the said city did employ one Scowden, an engineer, who made a uniform system of grades and drainage for the streets and alleys of said city and reported the same to the council of said city, which was by the said council adopted; that the plaintiff was about to buy a lot on Pike street in said city, and in November, 1873, applied to S. H. Piersol, the engineer of the said city, to ascertain the grade of the said street adjoining said lot, and was informed by said engineer, that the grade of the said street as established by said city in pursuance of said act, would require a cut of eighteen inches; that relying upon the grade being so established he purchased said lot, and in conformity to said grade so established erected a dwelling-house thereon, and moved into said house, and expended large sums of money in improving and beautifying said lot, and continued to occupy the same unmolested until about the month of May, 1876, when the city council of Parkersburg, disregarding the said act of the Legislature and without asking or seeking the assent of the plaintiff, or a majority of, or any of the property-holders along Pike street at or near the point at which the said lot is situated, unlawfully, wrongfully and injuriously commenced a change of the grade of said Pike street by filling with dirt, gravel, &c, the said street in front of plaintiff's said lot, and against the protestations of said plaintiff continued to fill the said street at the point opposite to and adjoining the said plaintiff's property, until the grade is five feet or more above that which was the established grade of the said street, at the time the plaintiff became the owner of said lot, and at the time he erected his said dwelling-house upon the same, thereby obstructing the ingress to and egress from the plaintiff's said dwelling-house, thereby compelling the plaintiff to lay out large sums of money, and put him to great labor, to enable him to use and occupy his said house; that said city council of Parkersburg at no time(asked the assent of this plaintiff, or a majority of, or any of, the property-owners along the line of the street, where said change in the grade was proposed to be made, nor at any time proposed to pay the plaintiff any damage done to said property, to be agreed upon between tie plaintiff and defendant, which assent, the said act expressly declares, should be first obtained, and said plaintiff never assented to such change; that the said defendant though often requested, refused, and still refuses, to pay the plaintiff any damages for the said injury done to his property; and though often requested, the said defendant has refused, and still refuses, to raise the said dwelling-house of the plaintiff" and place it upon the new grade so made by it; and by reason of the premises the plaintiff has been, and is, greatly annoyed and inconvenienced in the use, possession and enjoyment of the said dwelling-house, garden-ground and premises; and the same thereby became and were greatly damaged and lessened in value to the damage of the plaintiff $500.00, &c.

The defendant appeared and demurred to: he declaration; and the demurrer was overruled; and the defendant pleaded not guilty. The case was tried before a jury; and a verdict for $200.00 damages was rendered against the defendant. Motion for a new trial was made and overruled; and on the 12th day of April, 1878, judgment was rendered on the verdict.

Two bills of exceptions were taken to the rulings of the court during the trial. The first, to the judgment of the court permitting certain orders of the city council of Parkersburg to be introduced as evidence to the jury. The said orders are as follows:

" At a special meeting held April 24, 1873. present the mayor, and councilmen Burk, Farrow, Kirkpatrick, Logan, Stahlman and Stephenson.

" Mr. R. T. Scowden, hydraulic and mechanical engi- neer, of Cincinnati, being present by invitation of the council made a general statement in reference to waterworks. Mr. Stephenson offered the following, which was unanimously adopted:

"Resolved, That we pay Mr. Scowden forty (40) dollars for expenses and services for coming to the city of Parkersburg at the request of the mayor and city council, and that the mayor draw his warrant on the treasurer for the payment of the same, and,

" Resolved, also, That at the next regular meeting we will take into consideration the matter of employing him to make an estimate of establishing water-works and also an estimate of establishing the regular grades of the streets and alleys of said city, and will correspond with him immediately thereafter.''

"And at a regular meeting of the city council held on the 27th day of May, 1873, present, the mayor and councilmen Farrow, Burk, Stephenson, Smith, Kirkpatrick and Logan."

"Among other things is the following:

"On motion of Mr. Logan, Mr. Scowden was allowed $50 on account of surveying the streets and establishing a city grade for the same."

"And at an adjourned meeting of the city council, held on the 10th of June, 1873, present, the mayor and councilmen Farrow, Stahlman, Stephenson and Smith.

"Among other things is the following:

" On motion, R. T. Scowden was allowed $200 on account of surveying the streets and alleys and furnishing profiles."

"At a regular meeting of the city council held on the 12th day of August, 1873, present, the mayor and councilmen Burk, Farrow, Kirkpatrick, Logan, Stahlman and Smith.

"Among other things is the following:

" On motion, council proceeded to consider the grade of the streets."

"On motion, it was agreed that the grade as made by Mr. Peacock, C. E., and drawn on the profile from Green street southeast to the corporation line be adopted as the permanent grade.",

"At a special meeting of the city council held on the 14th day of November, 1873.

"Among other things is the following:

" On motion, Resolved, That the clerk is hereby directed to prepare a proper index for, and have bound in a substantial manner, the sheets showing the profiles and adopted grades of the streets and alleys of the city, as made by W. L. Peacock, C. E., and the city attorney be required to petition the State Legislature...