Kemper v. City of Louisville
| Decision Date | 12 June 1878 |
| Citation | 77 Ky. 87 |
| Parties | Kemper and Wife v. City of Louisville. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON COMMON PLEAS COURT.
STERLING B. TONEY FOR APPELLANTS.
1. Resident citizens and tax-payers of a city are not competent jurors in an action against the city. (3 Co. Lit. 464; Eberle v. The Board of Directors St. Louis Public Schools, 11 Mo. 248; Hobart, 87; 3 Bacon, 756; Find v. St. Louis Public Schools, 30 Mo. 173; Hesketh v Braddock, 3 Burrows, 1847; Peck v. Essex, Zab. 656; Wood v. Stoddard, 2 John. 194; Haws v Gustin, 2 Allen, 402; 7 Mass. 461; Lynch v. Horey, 1 Bay, 229; Russel v. Hamilton, 2 Scam. 56; 2 Tidd's Pr. 853; Watson v. Tripp, 15 Am. Law Reg N. S. 282.)
2. The question in this case is, is a municipal corporation liable in damages when, in the construction or improvement of its streets in pursuance of an ordinance under its charter, it necessarily and inevitably and directly does actual injury to adjacent property by flooding it?
T. L. BURNETT, CITY ATTORNEY, FOR APPELLEE.
1. Unless expressly so declared by charter or statute, a municipal corporation is not liable to property-owners for the consequential damages necessarily resulting from either establishing a grade or changing an established grade of streets, although improvements were made in conformity to the first grade. (Dillon on Mun. Cor., sec. 543.)
To the same effect the following are cited: Callender v. Marsh, 1 Pick. 418; Griggs v. Foote, 4 Allen, 195; Brown v. Lowell, 8 Met. (Mass.) 172; 8 Gray, 409; Radcliff's ex'r v. Mayor, & c., 4 Coms. 195; O'Conner v. Pittsburgh, 18 Pa.St. 187; Smith v. Washington, 20 Howard, 135; Goszler v. Georgetown, 6 Wheaton, 593; Alexander v. Milwaukee, 16 Wis. 247; Keasy v. Louisville, 4 Dana, 154, 155; Lexington v. McQuillan's heirs, 9 Dana, 513; Dillon on Mun. Cor., sec. 781.)
2. That a resident tax-payer is a competent juryman is clearly settled by article 3, chapter 62, General Statutes.
If a tax-payer is incompetent to serve as a juror because he is a tax-payer, then for the same reason no tax-payer would be competent to sit as a juryman in any commonwealth case where the penalty would be fine or imprisonment.
The appellants Kemper and wife were living upon and the owners of a small lot of ground in the city of Louisville, bordering on an improvement, made after their purchase, known as Grayson Street. This street was laid out and constructed in accordance with an ordinance passed by the general council. The lot is located in that portion of the city where the water, after heavy rains, accumulates in such quantities as to create small ponds that flow from one to the other, and in a short time are drained by a depression on the surface of the ground. Appellants had avoided this temporary inconvenience, caused by this collection of water, by elevating the lot above the natural surface, and were in the undisturbed use and enjoyment of their property, until the construction of Grayson Street by the city authorities. In making that improvement a fill was thrown across the natural drain, without sewer or culvert, so as to obstruct the passage of the water, and the result is that much of the lot of appellants is permanently covered by water, and their dwelling rendered almost uninhabitable, and for this injury the present action was instituted against the city. The reflux of the water, caused by the erection of the fill, has destroyed the shrubbery in the yard of appellants, and causeways are required to be built so as to enable appellants to avoid the water when going to or from their dwelling. On the trial, it appearing that the fill was made as directed by the city ordinance, and the engineer stating that he proposed to remedy the wrong for a small compensation, to be paid by the appellants, the court below instructed the jury to find for the city, and the appellants, maintaining that they must have some redress for this injury, have appealed to this court. The facts of the case are undisputed, and while the appellee has not converted the property of appellants to its own use, it has by the action of its council and employees inflicted such an injury to appellants' property as to render it almost valueless, and if there is no constitutional restraint upon this attempted exercise of the right of eminent domain, it must necessarily follow, that, in all cases where the property of the citizen has not been actually taken by the government, it may be occupied or its use destroyed, for whatever may be considered the public good, and the owner denied compensation.
We are not disposed to controvert the position, assumed by counsel for the city, that the owners of lots hold them with an implied consent on their part that the city or properly-constituted authorities may construct streets or change the grade of streets when deemed expedient, or the public good requires it, and the citizen must submit to such incidental disadvantages as do not amount to an invasion of his private rights; but where the property of the citizen has been taken, or such acts committed by the city or those in authority as amount to a total or partial destruction of his property, the damages sustained being the direct and immediate consequence of the acts complained of, he can not be denied the protection of that constitutional provision entitling him to just compensation before appropriating his property to public use. This applies to the citizen whether the property injured and owned by him is in the town, county, or city, and a municipal corporation can be invested with no greater right in the attempt to appropriate private property for public use than can be given by the state to an individual or private corporation, and, where private rights have been invaded by either, the right to damages must follow, whether the result of state or municipal action.
Authorities may be found sustaining the doctrine that where the property is not actually taken or occupied for public use, although the value of the property may be destroyed or greatly injured, as in this case, still it is not within the letter of the constitutional provision prohibiting the appropriation of private property for public use without compensation. The whole current of authority in this state is opposed to this doctrine, and at the same time we feel that this court has gone to the utmost limit in cases where the citizen has been denied compensation.
From the case of the Lexington & Ohio Railroad Co. v. Applegate, reported in 8 Dana, 289, and in all the subsequent decisions as late as the case of the Elizabethtown, Lexington & Big Sandy R. R. Co. v. Combs, 10 Bush, 382, it has been held in substance " that neither the state legislature or municipal corporation could license a private nuisance, or take or encroach on private property without the owner's consent or the payment to him of adequate damages." While the citizen can claim no damages for the mere inconveniences that may result from the construction or repairs of streets, where the city so constructs an improvement as to interfere with the private rights of the citizen, thereby causing an injury, the city must answer in damages. The appellants in this case have in effect been deprived of the use of their lot. Their mode of ingress and egress has not only been obstructed, but the water turned back upon the soil, destroying their shrubbery and garden and injuring the health of their family. The city might just as well have taken actual possession of the lot as to have deprived the owners of its legitimate use in this way. Compensation is as much demanded in the one case as the other. (Pumpelly v. Green Bay Co., 13 Wallace, 166.)
It is immaterial how much the public may be interested in the improvement of Grayson Street and the benefits to be derived from it. No invasion of a private right can be sanctioned upon the plea that the public good requires it, and all remedy denied the citizen.
The city authorities acted, no doubt, within the scope of their authority in ordering this...
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