Kehrer v. City of Richmond

• Decision Date: 22 April 1886
• Parties: KEHRER v. RICHMOND CITY.
• Court: Virginia Supreme Court

81 Va. 745

KEHRER v. RICHMOND CITY.

Supreme Court of Appeals of Virginia.

April 22, 1886

Error to judgment of circuit court of city of Richmond, rendered May 30, 1884, sustaining a demurrer to the declaration filed in a certain action of trespass on the case for damages pending in said court, wherein Henry Kehrer, the plaintiff in error, was plaintiff, and the city of Richmond was defendant.

Opinion states the case.

S D. Davis, for the plaintiff in error.

C V. Meredith, for the defendant in error.

OPINION

LEWIS P.

The declaration alleges that the plaintiff is, and for many years has been, seized in fee of a certain house and lot fronting on Venable street, in this city, where he resides and carries on a mercantile business. That on the ____ day of _______, 1883, the city, by its agents, under pretext of grading and improving the said street, wrongfully and unlawfully, and without the plaintiff's consent, threw earth from the street upon the premises of the plaintiff, so that the plaintiff was obliged, at his own costs, to remove the earth so thrown upon his premises, and to erect a barrier, of the height of four feet, along the whole front of his lot, to prevent the earth from falling upon and covering up his premises, and was furthermore obliged to erect a number of steps in order to have ingress and egress to and from his premises, etc.

" By reason of all which," the declaration avers, " the plaintiff is greatly damaged and injured in this, to-wit: that in order to prevent his said premises from being invaded and covered up by the earth and soil so wrongfully and unlawfully placed at and upon his said house and lot by the defendant as aforesaid, he is obliged to keep and maintain the said wall and barrier to a level with the said street, whereby and by reason of the said elevation of the grade of the said street, ingress and egress to and from his said house and store are rendered inconvenient and unsafe, the value of his said house and lot is greatly diminished, his business seriously impaired, rain-water finds easy access into his said house and store," causing great damage, etc.

A demurrer to this declaration was sustained by the judgment complained of, and the question thus presented is the single question to be determined.

Power to open streets and to grade and improve them is conferred upon the city by its charter, and we are of opinion that upon well settled principles, the judgment is right.

If the ground of the complaint and alleged injury were the deposit of earth from the street upon the plaintiff's premises, undoubtedly the declaration would set forth a good cause of action, for which the plaintiff would be entitled to recover such damages as a jury, upon the facts of the case, might consider he had sustained. Henderchott v. City of Ottumwa, 46 Iowa 658.

But it will be observed that no injury is alleged to have been sustained by the plaintiff on that ground, and, doubtless, for the reason that in point of fact no such injury has been sustained. The specification of damage in the declaration is placed upon another and very different ground--namely, the elevation of the grade of the street, from which it results, as alleged--1st. That the plaintiff is obliged to keep and maintain a barrier to prevent the falling of earth from the street upon his premises; 2d. That ingress and egress to and from his premises is rendered inconvenient and unsafe; 3d. That the value of his property has been diminished; 4th. That his business has been injured; and 5th. That the flow of rain-water upon his premises causes further damage, etc.

Such is the plaintiff's case, and upon these facts it is quite clear he is not entitled to recover.

The principle has nowhere been more emphatically asserted than by this court, in Smith v. City Council of Alexandria, 33 Gratt. 208, that a municipal corporation, acting within the scope of its powers, and with reasonable care and skill in the opening, grading, and improving its streets, is not liable " to the adjoining owner, whose lands are not actually taken, for consequential damages to his premises, unless there is a provision in the charter of the corporation, or...