Johnson v. City of Granville
| Decision Date | 28 February 1917 |
| Citation | 161 N.W. 721,36 N.D. 91 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of McHenry County, A. G. Burr, J.
Action to recover damages arising from an alleged change in the grade of a public street.
Judgment for defendant. Plaintiff appeals.
Affirmed.
Charles D. Kelso, for appellant.
It is apparent that the lower court sustained the demurrer upon the theory that there had been no lawful change in the grade of the streets and sidewalks, and that the acts of the officers of the city, in the absence of an ordinance duly passed and approved, were unauthorized, and therefore the city was not liable in damages. Comp. Laws 1913, § 3687.
The Constitution provides that private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner. N.D. Const. § 114; Searle v. Lead, 10 S.D. 312 39 L.R.A. 345, 73 N.W. 101; Whittaker v. Deadwood, 12 S.D. 608, 82 N.W. 202; Harmon v. Omaha, 17 Neb 548, 52 Am. Rep. 420, 23 N.W. 503; Dickerson v Oklahoma, 36 L.R.A.(N.S.) 1203, and note, 98 Ark. 206, 35 S.W. 863; Reardon v. San Francisco, 66 Cal. 492, 56 Am. Rep. 109, 6 P. 317; Eachus v. Los Angeles Consol. Electric R. Co. 103 Cal. 614, 42 Am. St. Rep. 149, 37 P. 750; Less v. Butte, 28 Mont. 27, 61 L.R.A. 601, 98 Am. St. Rep. 545, 72 P. 140; Bismarck Water Supply Co. v. Bismarck, 23 N.D. 352, 137 N.W. 34; Sallden v. Little Falls, 102 Minn. 358, 13 L.R.A.(N.S.) 790, 120 Am. St. Rep. 635, 113 N.W. 884.
This action is for damages for having built, under the orders and directions of the city officers, a sidewalk at a grade higher than the front of plaintiff's building, rendering it necessary to raise plaintiff's building to such grade or level, or abandon its use and occupancy. Comp. Laws 1913, §§ 3689, 3690.
The work of a public improvement, though performed illegally, is the act of the city, and the city must respond in damages,--the plaintiff's right to recover depending not upon the statute, but upon the constitutional right. Wallenberg v. Minneapolis, 111 Minn. 471, 127 N.W. 422, 856, 20 Ann. Cas. 873; Stocking v. Lincoln, 93 Neb. 798, 46 L.R.A.(N.S.) 107, 142 N.W. 104; Omaha v. Flood, 57 Neb. 124, 77 N.W. 379; O'Brien v. Philadelphia, 150 Pa. 589, 30 Am. St. Rep. 832, 24 A. 1047.
Whittaker v. Deadwood, 12 S.D. 608, 82 N.W. 202; Caldwell v. Nashua, 122 Iowa 179, 97 N.W. 1000; Fuller v. Mt. Vernon, 171 N.Y. 247, 63 N.E. 964; Brown v. Sigourney, 164 Iowa 184, 145 N.W. 478.
The authorities seem to hold that changing from the natural grade is a change. 28 Cyc. 1073; Bloomington v. Pollock, 141 Ill. 346, 31 N.E. 146; Bismarck Water Supply Co. v. Bismarck, 23 N.D. 352, 137 N.W. 34; Smith v. St. Joseph, 122 Mo. 643, 27 S.W. 344; Sallden v. Little Falls, 102 Minn. 358, 13 L.R.A.(N.S.) 790, 120 Am. St. Rep. 635, 113 N.W. 884; Wallenberg v. Minneapolis, 111 Minn. 471, 127 N.W. 422, 856, 20 Ann. Cas. 873; Chapman v. Staunton, 246 Ill. 394, 92 N.E. 905; Hemstead v. Salt Lake City, 32 Utah 261, 90 P. 397; Felt v. Salt Lake City, 32 Utah 275, 90 P. 402; Whittaker v. Deadwood, 12 S.D. 608, 82 N.W. 202; Less v. Butte, 28 Mont. 27, 61 L.R.A. 601, 98 Am. St. Rep. 545, 72 P. 140; Dickerson v. Oklahoma, 36 L.R.A.(N.S.) 1201, note; Brown v. Sigourney, 164 Iowa 184, 145 N.W. 478.
C. W. Hookway, for respondent.
In order to entitle plaintiff to recover, there must have been some material change made in the grade from the natural grade. But appellant contends here "that this is not an action for damages by change of grade established by ordinance, but for damage resulting as the incidental change of grade by constructing the sidewalk at a higher level." The complaint fails to contain sufficient allegations of how or why, or in what manner, she has sustained damages. She takes the ultra vires acts of the officers too seriously. The city is not liable for such acts. Searle v. Lead, 10 S.D. 312, 39 L.R.A. 345, 73 N.W. 101; Vanderlip v. Grand Rapids, 73 Mich. 522, 3 L.R.A. 247, 16 Am. St. Rep. 597, 41 N.W. 677.
This is an appeal from an order sustaining a demurrer to the complaint and from the judgment entered thereon. The complaint alleges that the defendant ordered the construction of a sidewalk in front of the lot and building of the plaintiff, and "that by reason of the constructing of said sidewalk at a level above the grade of the front of the building above described and mentioned this plaintiff has been compelled to raise said building a height of approximately 15 or 18 inches, greatly injuring and damaging said building by wrenching apart the joints, partitions, and joists of said building, cracking and destroying the plaster in said building, and generally greatly weakening and damaging and injuring the whole of said building without the fault of this plaintiff, damaging and injuring this plaintiff in the sum of five hundred and no-100 ($ 500) dollars; that this plaintiff, in order to so raise said building, was compelled to, and did, employ workmen for that purpose, and expended money for labor in effecting the raising of said building in the sum of three hundred and no-100 ($ 300) dollars, and that this plaintiff expended for material and lumber for the effecting of the raising of said building and the repair of said building the sum of two hundred and no-100 ($ 200) dollars.
"That by reason of the damage to this plaintiff's building and the expenditure of money for labor and material in raising said building and repairing the same this plaintiff has been damaged in the sum of one thousand and no-100 ($ 1,000) dollars."
The demurrer alleges that the complaint fails to state a cause of action; that the plaintiff has failed to...
To continue reading
Request your trial